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THE PRESIDENT'S CONTROL 
OF FOREIGN RELATIONS 



BY 

EDWARD S. CORWIN, Ph.D. 

PROFESSOR OF POLITICS, PRINCETON UNIVERSITY 



The transaction of business with foreign nations 
is executive altogether." — Jefferson 



n-ai -1 



PRINCETON UNIVERSITY PRESS 
PRINCETON 

LONDON: HUMPHREY MILFORD 

OXFORD UNIVERSITY PRESS 

1917 






Copyright, 1917, by 
Princeton University Press 

Published October, 1917 
Printed in the United States of America 



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7 




PREFACE 

The numerous interesting questions which have 
arisen since Mr. Wilson went to Washington as to 
the powers of the President in the diplomatic field 
suggested the idea that it might be worth while to 
bring together the principal historical incidents illus- 
trating the subject and the most instructive parts of 
the discussions which these incidents evoked. It is 
fortunate that at the very outset of our national his- 
tory a debate occurred between the two ablest mem- 
bers of the body which framed the Constitution 
bearing upon this subject, and disclosing its most 
fundamental issues. This was the debate between 
'Tacificus" (Hamilton) and "Helvidius" (Madison) 
w^hich is included in Part I of this volume, while an 
interesting parallel to this early discussion is furnished 
by the debate between Senators Spooner and Bacon, 
upon the same issues, which makes up Part III. In 
Part II, which constitutes the main body of the book, 
I have had two objects in mind: first, to cull from a 
rather voluminous ''literature" the best material perti- 

iii 



iv PREFACE 

nent to the subject, and secondly, to state succinctly 
the results that seem to spring from the discussions 
canvassed and from actual practice. For the most 
part, my indebtedness is simply to the sources, the 
Annals, the Globe, the Record, the Reports, the ^'Opin- 
ions of the Attorneys-General," and to the ''Messages 
and Papers of the Presidents." Other minor obliga- 
tions are duly recorded in the footnotes. E. S. C. 
Princeton, August 15, 191 7. 



CONTENTS 

Introduction (Applicable provisions of the Con- 
stitution and principles of construction 
thereof) i 

Part I — The General Issue: 
Chapter I— "Pacificus" and "Helvidius" 7 

Part II — Topics and Precedents: 

Chapter II — Diplomatic Intercourse, Its Incidents 

and Agents — Recognition 33 

I — Significance of the term "executive 
pov^er" in 1789 33 

2 — Executive independence and Congress- 
ional advice 35 

3 — The power of the President to receive 
foreign diplomatic and consular agents. . 46 

4 — The powers of the President in connec- 
tion with the appointment of the diplo- 
matic agents of the United States and the 
determination of their grades 49 

5 — Whether the power of the President to 
recognize new States and Governments 
is exclusive 7^ 

Chapter III — The Making, Enforcement and Ter- 
mination of Treaties — Executive Agreements.. 84 
I — The relations of the President and Sen- 
ate in the making of treaties 84 

2 — The duty and discretion of Congress in 
the enforcement of treaties, the powers 
of the President and the Courts in the 



vi CONTENTS 

same connection, and the enforcement of 
the obligations of the United States at 
International Law 9^ 

3— The abrogation of treaties as interna- 
tional contracts, their termination upon 
notice given, and the power to pronounce 
them lapsed 109 

4 — The power of the President to enter 
into agreements with foreign Govern- 
ments without reference to the Senate. . . 116 

Chapter IV— Presidential War Making— Political 

Questions 126 

*" I — The President's choice of diplomatic 
policies as affected by the right of Con- 
gress to declare war 126 

2 — The power of the President to recognize 

an existing state of war 131 

3 — The power of the President to adopt 
warlike measures to protect the rights 

abroad of American citizens 142 

4 — Same as to American *'i-nterests" abroad 156 
5 — The meaning and importance of the 
concept ''political questions" 163 

Part III — The General Issue Again: 
Chapter V — A Senatorial Debate 168 

Conclusion (Summary of principal developments) 205 
Index 209 



THE PRESIDENT'S CONTROL OF 
FOREIGN RELATIONS 

INTRODUCTION 

The power of the national Government in the con- 
trol of the foreign relations of the United States is 
both plenary and exclusive. The Court in the Chinese 
Exclusion Cases says: 

While under our Constitution and form of govern- 
ment the great mass of local matters is controlled by 
local authorities, the United States, in their relation to 
foreign countries and their subjects or citizens, are one 
nation, invested with the powers which belong to inde- 
pendent nations, the exercise of which can be invoked 
for the maintenance of its absolute independence and 
security throughout its entire territory. . . . The control 
of local matters being left to local authorities, and na- 
tional matters being intrusted to the Government of the 
Union, the problem of free institutions existing over a 
widely extended country, having different climates and 
varied interests, has been happily solved. For local in- 
terests the several States of the Union exist, but for the 
national purposes, embracing our relations with foreign 
nations, we are but one people, one nation, one power.^ 

The same idea is reiterated by the Court in Fong 
Yue Ting v. U. S. in the following words : 

The United States are a sovereign and independent 
nation, and are vested by the Constitution with the entire 

1 130 U. S. 581, 604. 



2 THE PRESIDENT'S CONTROL 

control of international relations, and with all the powers 
of government necessary to maintain that control and 
make it effective. The only government of this country, 
which other nations recognize or treat with, is the Gov- 
ernment of the Union ; and the only American flag known 
throughout the world is the flag of the United States.^ 

The powers, however, which compose this plenary 
control are shared by three branches of the national 
Government : Congress, the President, and the Senate. 
The clauses of the Constitution which give Congress 
its participation in the control of our foreign relations 
are the following, in Article I, Section 8 : 

The Congress shall have power to lay and collect taxes, 
duties, imposts, and excises, to pay the debts and provide 
for the common defense and general welfare of the 
United States; ... to regulate commerce with foreign 
nations ; ... to establish an uniform rule of naturaliza- 
tion ; ... to define and punish piracies and felonies com- 
mitted on the high seas and offenses against the law of 
nations; to declare war, grant letters of marque and 
reprisal, and make rules concerning captures on land and 
water; to raise and support armies, but no appropriation 
of money to that use shall be for a longer time than two 
years; to provide and maintain a navy; ... to make all 
laws which shall be necessary and proper for carrying 
into execution the foregoing powers, and all other powers 
vested by this Constitution in the Government of the 
United States, or in any department or officer thereof. 

The President's powers in the same connection, 
shared in some instances by the Senate, spring from 
the following provisions of the Constitution, in Sec- 
tions I, 2, and 3 of Article II: 

2 149 U. S. 698, 711. See also C. J. Taney's opinion in Holmes 
V. Jennison, 14 Peters 540, 569 ff. 



OF FOREIGN RELATIONS 3 

The executive power shall be vested in a President 
of the United States of America. . . . The President 
shall be Commander-in-chief of the Army and Navy of 
the United States, and of the militia of the several States 
when called into the actual service of the United States ; 
... he shall have power, by and with the advice and 
consent of the Senate, to make treaties, provided two- 
thirds of the Senators present concur; and he shall nomi- 
nate, and, by and with the advice and consent of the 
Senate, shall appoint ambassadors, other public ministers 
and consuls. . . . The President shall have power to fill all 
vacancies that may happen during the recess of the Sen- 
ate, by granting commissions which shall expire at the 
end of their next session. . . . He shall receive am- 
bassadors and other public ministers; he shall take care 
that the laws be faithfully executed, and shall commis- 
sion all the officers of the United States. 

Finally, Article VI, Paragraph 2, of the Constitu- 
tion provides that: 

This Constitution, and the laws of the United States 
which shall be made in pursuance thereof, and all treaties 
made, or which shall be made, under the authority of 
the United States, shall be the supreme law of the land; 
and the judges in every State shall be bound thereby, 
anything in the Constitution or laws of any State to the 
contrary notwithstanding. 

The questions that have arisen on the basis of the 
above provisions of the Constitution, so far as they 
touch the subject of the control of our foreign rela- 
tions, are of two classes : first, those which have arisen 
because of the insufficiency of these provisions, with- 
out construction, to afford the national Government 
its putative complete sovereignty in this field; sec- 
ondly, those which have arisen because of the fact 



4 THE PRESIDENT'S CONTROL 

that the powers bestowed by these provisions on dif- 
ferent organs frequently overlap. 

Illustrations of the first class of questions are the 
following: Congress is given the power to declare 
war ; the President and the Senate are given the power 
to make peace by treaty; but on the subject of neutral- 
ity the Constitution is silent. It is also silent on the 
subject of abrogating treaties; also, on the subject of 
according recognition to new governments; also, on 
the subject of international agreements short of 
treaties, etc. 

Illustrations of the second class of questions will 
occur to any reader. Thus Congress is given the 
power to declare war, while treaties are made by the 
President and the Senate. Suppose that the President 
and the Senate make a treaty of alliance with another 
government by the terms of which the United States 
becomes obligated at a particular moment to declare 
war on a third power: i6 Congress under constitu- 
tional obligation so to declare war? Or, suppose that 
before a treaty made in due form by the President 
and the Senate can be carried out, Congress must vote 
an appropriation: is it constitutionally bound to do 
so? This question, in fact, arose in 1796,^ in con- 
nection with the unpopular Jay Treaty, and it has 
been suggested in similar situations many times since, 
though actually Congress seems never to have refused 
the required appropriation. 

The principles that have been developed in the solu- 

3 See Part II, Chapter III, Section 2, dealing with the en- 
forcement of treaties. 



OF FOREIGN RELATIONS 5 

tion of these questions will appear more in detail in 
Part Two of this work, but for the guidance of the 
reader the two preeminent ones should be stated briefly 
at this point: First, the gaps above alluded to in the 
constitutional delegation of powers to the national 
Government, affecting foreign relations, have been 
filled in by the theory that the control of foreign rela- 
tions is in its nature an executive function and one, 
therefore, which belongs to the President in the ab- 
sence of specific constitutional provision to the con- 
trary. But, as the debate given in Part I between 
*Tacificus" (Hamilton) and "Helvidius" (Madison) 
shows, the theory was, to begin with, vigorously 
disputed. 

Secondly, the difficulty arising from overlapping 
powers has been met by attributing to the respective 
bearers of such powers full constitutional discretion 
in their discharge. The difficulty has, in other words, 
been converted from a legal one to a political one, 
with the result that the real solution has to be sought 
as each case arises by the methods of compromise and 
practical statesmanship. Thus if the President, in the 
exercise of his powers, brings the country at any time 
to the verge of war. Congress still retains theoretically 
its discretion in the matter of declaring war, but ac- 
tually no President has ever ventured so far to lose 
touch with Congress that the latter has not supported 
his foreign policy, even to the last resort, though such 
a case came near occurring in Tyler's administration. 

But the reader -may at this point object that, since 
the initiative in foreign intercourse has largely passed 



6 CONTROL OF FOREIGN RELATIONS 

to the President, Congress is generally at a great dis- 
advantage in attempting to assert its viewpoint in such 
matters, even in the discharge of its acknowledged 
powers. This is no doubt true to an extent, though we 
must not forget either the disadvantages of the Presi- 
dent's position. In the first place, the President must 
discharge his functions ordinarily through the agencies 
provided by Congress, by virtue of its power to "pass 
all laws necessary and proper for carrying into execu- 
tion ... all powers vested by this Constitution in the 
Government of the United States, or any department 
or officer thereof." In the second place, the President 
may expend the public revenue only for the purposes 
which Congress may choose to dictate. Finally, the 
President is under direct constitutional obligation to 
"take care that the laws be faithfully executed." 

The actual necessities of the case have more and 
more centred the initiative in directing our foreign 
policy in the hands of the President. But this is far 
from saying that the President is even yet an autocrat 
in this field. And so long as the above mentioned 
checks upon his power subsist, it is difficult to see how 
he can become an autocrat, save at extraordinary mo- 
ments and when backed by the overwhelming approval 
of American public opinion. 



PART ONE: THE GENERAL ISSUE 

CHAPTER I 

"Pacificus" and "Helvidius" 

upon the outbreak of war between France and 
Great Britain in 1793 Washington, under date of 
April 22 of that year, issued what is usually called a 
Proclamation of Neutrality/ The proclamation, which 
was drafted by Jay, declared the intention of the 
United States to "pursue a course friendly and im- 
partial to both belligerent powers," and enjoined upon 
all citizens its observance upon pain of prosecution.^ 
Though it avoided the use of the word "neutrality," 
the document was soon attacked by French sympa- 
thizers as beyond the President's power to issue, as 
well as upon other grounds. The defense of the 

1 For the text of the Proclamation, see Wm. MacDonald, 
Documentary Source Book of American History, p. 243. 

2 For a prosecution that took place in pursuance of this threat, 
see Gideon Henfield's Case, Wharton's State Trials, p. 49; Fed- 
eral Cases, No. 6360. The prosecution, which was sustained by 
the United States Circuit Court at Philadelphia, comprising 
Justices Wilson and Iredell of the Supreme Court, and District 
Judge Peters, was based on the theory that the Federal courts 
have a common law jurisdiction of offenses against the sov- 
ereignty of the United States, an idea which has long since 
disappeared. See U. S. v. Goodwin, 7 Cranch 32; Wheaton v. 
Peters, 8 Peters 591. 

7 



8 THE PRESIDENT'S CONTROL 

proclamation was thereupon undertaken by Hamilton 
in a series of eight articles contributed to The Gazette 
of the United States (Philadelphia), under the pseu- 
donym 'Tacificus." The first article, dated June 29, 
1793, alone deals with the constitutional question. 
It follows: 

No. I 
As attempts are making, very dangerous to the peace, 
and, it is to be feared, not very friendly to the Constitu- 
tion of the United States, it becomes the duty of those 
who wish well to both, to endeavor to prevent their 

success. 

The objections which have been raised against the 
proclamation of neutrality, lately issued by the president, 
have been urged in a spirit of acrimony and invective, 
which demonstrates that more was in view than merely 
a free discussion of an important public measure. They 
exhibit evident indications of a design to weaken the 
confidence of the people in the author of the measure, 
in order to remove or lessen a powerful obstacle to the 
success of an opposition to the government, which, how- 
ever it may change its form according to circumstances, 
seems still to be persisted in with unremitting industry. 

This reflection adds to the motives connected with the 
measure itself, to recommend endeavors, by proper ex- 
planations, to place it in a just light. Such explanations, 
at least, cannot but be satisfactory to those who may 
not themselves have leisure or opportunity for pursuing 
an investigation of the subject, and who may wish to 
perceive that the policy of the government is not incon- 
sistent with its obligations or its honor. 

The objections in question fall under four heads: 

1 That the proclamation was without authority. 

2 That it was contrary to our treaties with France. 

3 That it was contrary to the gratitude which is due 
from this to that country, for the succors afforded to us 
in our own revolution. 

4 That it was out of time and unnecessary. 



OF FOREIGN RELATIONS 9 

In order to judge of the solidity of the first of these 
objections, it is necessary to examine what is the nature 
and design of a proclamation of neutrality. 

It is to make kfwwn to the powers at war, and to the 
citizens of the country whose government does the act, 
that such country is in the condition of a nation at peace 
with the belligerent parties, and under no obligations of 
treaty to become an associate in the war with either, and 
that this being its situation, its intention is to observe 
a corresponding conduct, by performing towards each 
the duties of neutrality; to warn all persons within the 
jurisdiction of that country, to abstain from acts that 
shall contravene those duties, under the penalties which 
the laws of the land, of which the jus gentium is part, 
will inflict. 

This, and no more, is conceived to be the true import 
of a proclamation of neutrality. . . . 

If this be a just view of the force and import of the 
proclamation, it will remain to see, whether the president, 
in issuing it, acted within his proper sphere, or stepped 
beyond the bounds of his constitutional authority and 
duty. 

It will not be disputed, that the management of the 
affairs of this country with foreign nations is confided 
to the government of the United States. 

It can as little be disputed, that a proclamation of 
neutrality, when a nation is at liberty to decline or avoid 
a war in which other nations are engaged, and means 
to do so, is a usual and a proper measure. Its main ob- 
ject is to prevent the nation s being responsible for acts 
done by its citizens, zvithout the privity or connivance 
of the government, in contravention of the principles of 
neutrality; an object of the greatest moment to a country 
whose true interest lies in the preservation of peace. 

The inquiry then is, what department of our govern- 
ment is the proper one to make a declaration of neutral- 
ity, when the engagements of the nation permit, and its 
interests require that it should be done? 

A correct mind will discern at once, that it can belong 
neither to the legislative nor judicial department, of 
course must belong to the executive. 



lO 



THE PRESIDENT'S CONTROL 



The legislative department is not the organ of inter- 
course between the United States and foreign nations. 
It is charged neither with making nor interpreting 
treaties. It is therefore not naturally that member of 
the government, which is to pronounce the existing con- 
dition of the nation, with regard to foreign powers, or 
to admonish the citizens of their obligations and duties 
in consequence; still less is it charged with enforcing the 
observance of those obligations and duties. 

It is equally obvious, that the act in question is foreign 
to the judiciary department. The province of that de- 
partment is to decide litigations in particular cases. It 
is indeed charged with the interpretation of treaties, but 
it exercises this function only where contending parties 
bring before it a specific controversy. It has no concern 
with pronouncing upon the external political relations 
of treaties between government and government. This 
position is too plain to need being insisted upon. 

It must then of necessity belong to the executive de- 
partment to exercise the function in question, when a 
proper case for it occurs. 

It appears to be connected with that department in 
various capacities : — As the organ of intercourse between 
the nation and foreign nations; as the interpreter of the 
national treaties, in those cases in which the judiciary 
is not competent, that is, between government and gov- 
ernment; as the power which is charged with the execu- 
tion of the laws, of which treaties form a part; as that 
which is charged with the command and disposition of 
the public force. 

This view of the subject is so natural and obvious, 
so analogous to general theory and practice, that no 
doubt can be entertained of its justness, unless to be 
deduced from particular provisions of the Constitution 
of the United States. 

Let us see, then, if cause for such doubt is to be 
found there. 

The second article of the Constitution of the United 
States, section first, establishes this general proposition 
that "the EXECUTIVE POWER shall be vested in a 
President of the United States of America." 



OF FOREIGN RELATIONS ii 

The same article, in a succeeding section, proceeds to 
delineate particular cases of executive power. It de- 
clares, among other things, that the president shall be 
commander in chief of the army and navy of the United 
States, and of the militia of the several states, when 
called into the actual service of the United States ; that 
he shall have power, by and with the advice and consent 
of the senate, to make treaties ; that it shall be his duty 
to receive ambassadors and other public ministers, and 
to take care that the laws he faithfully executed. 

It would not consist with the rules of sound construc- 
tion, to consider this enumeration of particular author- 
ities as derogating from the more comprehensive grant 
in the general clause, further than as it may be coupled 
with express restrictions or limitations; as in regard to 
the co-operation of the senate in the appointment of offi- 
cers, and the making of treaties ; which are plainly quali- 
fications of the general executive powers of appointing 
officers and making treaties. The difficulty of a com- 
plete enumeration of all the cases of executive authority, 
would naturally dictate the use of general terms, and 
would render it improbable that a specification of certain 
particulars was designed as a substitute for those terms, 
when antecedently used. The different mode of ex- 
pression employed in the constitution, in regard to the 
two powers, the legislative and the executive, serves to 
confirm this inference. In the article which gives the 
legislative powers of the government, the expressions 
are, "All legislative powers herein granted shall be vested 
in a congress of the United States." In that which 
grants the executive power, the expressions are, "The 
executive power shall be vested in a President of the 
United States." 

The enumeration ought therefore to be considered, as 
intended merely to specify the principal articles implied 
in the definition of executive power ; leaving the rest to 
flow from the general grant of that power, interpreted 
in conformity with other parts of the Constitution, and 
with the principles of free government. 

The general doctrine of our Constitution then is, that 
the executive power of the nation is vested in the Presi- 



12 



THE PRESIDENT'S CONTROL 



dent; subject only to the exceptions and qualifications, 
which are expressed in the instrument. 

Two of these have been already noticed; the participa- 
tion of the senate in the appointment of officers, and in 
the making of treaties. A third remains to be mentioned ; 
the right of the legislature *'to declare war, and grant 
letters of marque and reprisal." 

With these exceptions, the executive power of the 
United States is completely lodged in the President. This 
mode of construing the Constitution has indeed been 
recognized by Congress in formal acts, upon full con- 
sideration and debate; of which the power of removal 
from office is an important instance. It will follow, 
that if a proclamation of neutrality is merely an execu- 
tive act, as it is believed has been shown, the step which 
has been taken by the President is liable to no just ex- 
ception on the score of authority. 

It may be said, that this inference would be just, if 
the power of declaring war had not been vested in the 
legislature; but that this power naturally includes the 
right of judging, whether the nation is or is not under 
obligation to make war. 

The answer is, that however true this position may be, 
it will not follow, that the executive is in any case ex- 
cluded from a similar right of judgment, in the execu- 
tion of its own functions. 

If on the one hand, the legislature have a right to 
declare war, it is on the other, the duty of the executive 
to preserve peace, till the declaration is made; and in 
fulfilling this duty, it must necessarily possess a right 
of judging what is the nature of the obligations which 
the treaties of the country impose on the government; 
and when it has concluded that there is nothing in them 
inconsistent with neutrality, it becomes both its province 
and its duty to enforce the laws incident to that state 
of the nation. The executive is charged with the execu- 
tion of all laws, the law of nations, as well as the munici- 
pal law, by which the former are recognized and adopted. 
It IS consequently bound, by executing faithfully the laws 
of neutrahty, when the country is in a neutral position 
to avoid giving cause of war to foreign powers. 



OF FOREIGN RELATIONS 13 

This is the direct end of the proclamation of neutrality. 
It declares to the United States their situation with re- 
gard to the contending parties, and makes known to the 
community, that the laws incident to that state will be 
enforced. In doing this, it conforms to an established 
usage of nations, the operation of which, as before re- 
marked, is to obviate a responsibility on the part of the 
whole society, for secret and unknown violation of the 
rights of any of the warring powers by its citizens. 

Those who object to the proclamation will readily 
admit, that it is the right and duty of the executive to 
interpret those articles of our treaties which give to 
France particular privileges, in order to the enforce- 
ment of them: but the necessary consequence of this is, 
that the executive must judge what are their proper 
limits; what rights are given to other nations, by our 
contracts with them; what rights the law of nature and 
nations gives, and our treaties permit, in respect to those 
countries with which we have none ; in fine, what are the 
reciprocal rights and obligations of the United States 
and of all and each of the powers at war. 

The right of the executive to receive ambassadors and 
other public ministers, may serve to illustrate the relative 
duties of the executive and legislative departments. This 
right includes that of judging, in the case of a revolution 
of government in a foreign country, whether the new 
rulers are competent organs of the national will, and 
ought to be recognised, or not; which, where a treaty 
antecedently exists between the United States and such 
nation, involves the power of continuing or suspending 
its operation. For until the new government is acknowl- 
edged, the treaties between the nations, so far at least 
as regards public rights, are of course suspended. 

This power of determining virtually upon the operation 
of national treaties, as a consequence of the power to re- 
ceive public ministers, is an important instance of the 
right of the executive, to decide upon the obligations of 
the country with regard to foreign nations. To apply 
it to the case of France, if there had been a treaty of 
alliance, offensive and defensive between the United 
States and that country, the unqualified acknowledg- 



14 THE PRESIDENT'S CONTROL 

ment of the new government would have put the United 
States in a condition to become an associate in the war 
with France, and would have laid the legislature under 
an obligation, if required, and there was otherwise no 
valid excuse, of exercising its power of declaring war. 

This serves as an example of the right of the execu- 
tive, in certain cases, to determine the condition of the 
nation, though it may, in its consequences, affect the 
exercise of the power of the legislature to declare war. 
Nevertheless, the executive cannot thereby control the 
exercise of that power. The legislature is still free to 
perform its duties, according to its own sense of them; 
though the executive, in the exercise of its constitutional 
powers, may establish an antecedent state of things, 
which ought to weigh in the legislative decision. 

The division of the executive power in the Constitu- 
tion, creates a concurrent authority in the cases to which 
it relates. 

Hence, in the instance stated, treaties can only be 
made by the president and senate jointly; but their activ- 
ity may be continued or suspended by the President 
alone. 

No objection has been made to the President's having 
acknowledged the republic of France, by the reception 
of its minister, without having consulted the senate; 
though that body is connected with him in the making 
of treaties, and though the consequence of his act of 
reception is, to give operation to those heretofore made 
with that country. But he is censured for having de- 
clared the United States to be in a state of peace and 
neutrality, with regard to the powers at war; because 
the right of changing that state, and declaring war, be- 
longs to the legislature. 

It deserves to be remarked, that as the participation 
of the senate in the making of treaties, and the power 
of the legislature to declare war, are exceptions out of 
the general "executive power" vested in the President, 
they are to be construed strictly, and ought to be ex- 
tended no further than is essential to their execution. 

While, therefore, the legislature can alone declare war, 
can alone actually transfer the nation from a state of 



OF FOREIGN RELATIONS 15 

peace to a state of hostility, it belongs to the "executive 
power" to do whatever else the law of nations, co- 
operating with the treaties of the country, enjoin in the 
intercourse of the United States with foreign powers. 

In this distribution of authority, the wisdom of our 
Constitution is manifested. It is the province and duty 
of the executive to preserve to the nation the blessings 
of peace. The legislature alone can interrupt them by 
placing the nation in a state of war. 

But though it has been thought advisable to vindicate 
the authority of the executive on this broad and compre- 
hensive ground, it was not absolutely necessary to do so. 
That clause of the Constitution which makes it his duty 
to "take care that the laws be faithfully executed," might 
alone have been relied upon, and this simple process of 
argument pursued. 

The President is the Constitutional EXECUTOR of 
the laws. Our treaties, and the laws of nations, form a 
part of the law of the land. He, who is to execute the 
laws, must first judge for himself of their meaning. In 
order to the observance of that conduct which the laws 
of nations, combined with our treaties, prescribed to 
this country, in reference to the present war in Europe, 
it was necessary for the President to judge for himself, 
whether there was anything in our treaties, incompatible 
with an adherence to neutrality. Having decided that 
there was not, he had a right, and if in his opinion the 
interest of the nation required it, it was his duty as 
executor of the laws, to proclaim the neutrality of the 
nation, to exhort all persons to observe it, and to warn 
them of the penalties which would attend its non- 
observance. 

The proclamation has been represented as enacting 
some new law. This is a view of it entirely erroneous. 
It only proclaims a fact, with regard to the existing state 
of the nation; informs the citizens of what the laws 
previously established require of them in that state, and 
notifies them that these laws will be put in execution 
against the infractors of them.^ 

3 The Works of Alexander Hamilton (J. C. Hamilton, Editor), 
VII, p. 76 ff. 



i6 THE PRESIDENT'S CONTROL 

Jefferson, though he had approved of the Proclama- 
tion of Neutrahty, was quite ready to make whatever 
political capital he could out of the opposition to it. 
He was, accordingly, considerably exercised at the 
pronounced effect of Hamilton's letters in support of 
the proclamation. ''Nobody," he wrote Madison on 
July 7, "answers him and his doctrines will therefore 
be taken for confessed. For God's sake, my dear Sir, 
take up your pen, select the most striking heresies, 
and cut him to pieces in face of the public. There is 
nobody else who can and will enter the lists against 
him."* Madison complied, though with some reluc- 
tance, in the letters of "Helvidius," which ran in the 
Gazette from August 24 to September 18, being five 
in number in all. The following extracts from the 
first three numbers give the burden of Madison's argu- 
ment, which it will be seen is confined to the constitu- 
tional question: 

No. I 

Several pieces with the signature of PACIFICUS were 
lately published, which have been read with singular 
pleasure and applause, by the foreigners and degenerate 
citizens among us, who hate our republican government, 
and the French revolution; whilst the publication seems 
to have been too little regarded, or too much despised 
by the steady friends of both. . . . 

The substance of the first piece, sifted from its incon- 
sistencies and its vague expressions, may be thrown into 
the following propositions: 

That the powers of declaring war and making treaties 
are, in their nature, executive powers: 

That being particularly vested by the constitution in 

^Writings of Thomas Jefferson (P. L. Ford, Editor), VI, 
p. 338. 



OF FOREIGN RELATIONS 17 

other departments, they are to be considered as exceptions 
out of the general grant to the executive department : 

That being, as exceptions, to be construed strictly, the 
powers not strictly within them, remain with the ex- 
ecutive : 

That the Executive consequently, as the organ of inter- 
course with foreign nations, is authorized to expound all 
articles of treaties, those involving questions of war and 
peace, as well as others; — to judge of the obligations of 
the United States to make war or not, under any casus 
foederis or eventual operation of the contract, relating 
to war; and to pronounce the state of things resulting 
from the obligations of the United States, as understood 
by the executive: 

That in particular the executive had authority to judge, 
whether in the case of the mutual guaranty between the 
United States and France, the former were bound by it 
to engage in the war: 

That the executive has, in pursuance of that authority, 
decided that the United States are not bound: — and. 

That its proclamation of the 22nd of April last, is to be 
taken as the effect and expression of that decision. . . . 

If there be any countenance to these positions, it must 
be found either, first, in the writers of authority on public 
law; or, 2d, in the quality and operation of the powers 
to make war and treaties ; or, 3d, in the constitution of 
the United States. . . . 

3 It remains to be inquired, whether there be any 
thing in the constitution itself, which shows, that the 
powers of making war and peace are considered as of 
an executive nature, and as comprehended within a gen- 
eral grant of executive power. 

It will not be pretended, that this appears from any 
direct position to be found in the instrument. 

If it were deducihle from any particular expressions, 
it may be presumed, that the publication would have 
saved us the trouble of the research. 

Does the doctrine, then, result from the actual dis- 
tribution of powers among the several branches of the 
government? or from any fair analogy between the 



i8 THE PRESIDENT'S CONTROL ♦ 

powers of war and treaty, and the enumerated powers 
vested in the executive alone? 

Let us examine: 

In the general distribution of powers, we find that of 
declaring war expressly vested in the congress, where 
every other legislative power is declared to be vested; 
and without any other qualifications than what is com- 
mon to every other legislative act. The constitutional 
idea of this power would seem then clearly to be, that it 
is of a legislative and not an executive nature. 

This conclusion becomes irresistible, when it is recol- 
lected, that the constitution cannot be supposed to have 
placed either any power legislative in its nature, entirely 
among executive powers, or any power executive in its 
nature, entirely among legislative powers, without charg- 
ing the constitution, with that kind of intermixture and 
consolidation of different powers, which would violate 
a fundamental principle in the organization of free gov- 
ernments. If it were not unnecessary to enlarge on this 
topic here, it could be shown, that the constitution was 
originally vindicated, and has been constantly expounded, 
with a disavowal of any such intermixture. 

The power of treaties is vested jointly in the president 
and in the senate, wjiich is a branch of the legislature. 
From this arrangement merely, there can be no inference 
that would necessarily exclude the power from the ex- 
ecutive class: since the senate is joined with the presi- 
dent in another power, that o£ appointing to offices, 
which, as far as relate to executive offices at least, is 
considered as of an executive nature. Yet on the other 
hand, there are sufficient indications that the power of 
treaties is regarded by the constitution as materially dif- 
ferent from mere executive power, and as having more 
affinity to the legislative than to the executive character 

One circumstance indicating this, is the constitutional 
regulation under which the senate give their consent in 
he case of treaties. In all other cases, the consent of 
the body IS expressed by a majority of voices. In this 
particular case, a concurrence of two-thirds at least is 
made necessary, as a substitute or compensation for the 



OF FOREIGN RELATIONS 19 

other branch of the legislature, which, on certain occa- 
sions, could not be conveniently a party to the trans- 
action. 

But the conclusive circumstance is, that treaties, when 
formed according to the constitutional mode, are con- 
fessedly to have force and operation of laws, and are 
to be a rule for the courts in controversies between man 
and man, as much as any other lazvs. They are even 
emphatically declared by the constitution to be "the su- 
preme law of the land.'' 

So far the argument from the constitution is precisely 
in opposition to the doctrine. As little will be gained 
in its favour from a comparison of the two powers, with 
those particularly vested in the president alone. 

As there are but few, it will be most satisfactory to 
review them one by one. 

"The president shall be commander in chief of the 
army and navy of the United States, and of the militia 
when called into the actual service of the United States." 

There can be no relation worth examining between 
this power and the general power of making treaties. 
And instead of being analogous to the power of declaring 
war, it affords a striking illustration of the incompati- 
bility of the two powers in the same hands. Those who 
are to conduct a zvar cannot in the nature of things, be 
proper or safe judges, whether a war ought to be com- 
menced, continued, or concluded. They are barred from 
the latter functions by a great principle in free govern- 
ment, analogous to that which separates the sword from 
the purse, or the power of executing from the power 
of enacting laws. 

"He may require the opinion in writing of the prin- 
cipal officers in each of the executive departments upon 
any subject relating to the duties of their respective 
offices ; and he shall have power to grant reprieves and 
pardons for offences against the United States, except 
in case of impeachment." These powers can have noth- 
ing to do with the subject. 

"The president shall have power to fill up vacancies 
that may happen during the recess of the Senate, by 



20 THE PRESIDENT'S CONTROL 

granting commissions which shall expire at the end of 
the next session." The same remark is applicable to 
this power, as also to that of ''receiving ambassadors, 
other public ministers, and consuls." The particular use 
attempted to be made of this last power will be con- 
sidered in another place. 

*'He shall take care that the laws shall be faithfully 
executed, and shall commission all officers of the United 
States.'' To see the laws faithfully executed constitutes 
the essence of the executive authority. But what rela- 
tion has it to the power of making treaties and war, 
that is, of determining what the laws shall be with regard 
to other nations? No other certainly than what subsists 
between the powers of executing and enacting laws; no 
other, consequently, than what forbids a coalition of the 
powers in the same department. 

I pass over the few other specified functions assigned 
to the president, such as that of convening the legislature, 
&c., &c., which cannot be drawn into the present question. 

It may be proper however to take notice of the power 
of removal from office, which appears to have been ad- 
judged to the president by the laws establishing the 
executive departments; and which the writer has en- 
deavoured to press into his service. To justify any 
favourable inference from this case, it must be shown, 
that the powers of war and treaties are of a kindred 
nature to the power of removal, or at least are equally 
within a grant of executive power. Nothing of this sort 
has been attempted, nor probably will be attempted. 
Nothing can in truth be clearer, than that no analogy, 
or shade of analogy, can be traced between a power in 
the supreme officer responsible for the faithful execution 
of the laws, to displace a subaltern officer employed in 
the execution of the laws ; and a power to make treaties 
and to declare war, such as these have been found to be 
in their nature, their operation, and their consequences. 

Thus it appears that by whatever standard we try this 
doctrine, it must be condemned as no less vicious in 
theory than it would be dangerous- in practice. It is 
countenanced neither by the writers on law ; nor by the 



OF FOREIGN RELATIONS 21 

nature of the powers themselves ; nor by any general 
arrangements, or particular expressions, or plausible 
analogies, to be found in the constitution. 

Whence then can the writer have borrowed it? 

There is but one answer to this question. 

The power of making treaties and the power of de- 
claring war, are royal prerogatives in the British govern- 
ment, and are accordingly treated as executive preroga- 
tives by British commentators. . . . 

No. 2 

Leaving however to the leisure of the reader deduc- 
tions which the author, having omitted, might not choose 
to own, I proceed to the examination of one, with which 
that liberty cannot be taken. 

''However true it may be, (says he,) that the right 
of the legislature to declare war includes the right of 
judging, whether the legislature be under obligations to 
make war or not, it will not follow that the executive 
is in any case excluded from a similar right of judging 
in the execution of its own functions." 

A material error of the writer, in this application of 
his doctrine, lies in his shrinking from its regular conse- 
quences. Had he stuck to his principle in its full extent, 
and reasoned from it without restraint, he would only 
have had to defend himself against his opponents. By 
yielding the great point, that the right to declare war, 
though to be taken strictly, includes the right to judge, 
whether the nation be under obligation to make war or 
not, he is compelled to defend his argument, not only 
ogainst others, but against himself also. Observe, how 
] e struggles in his own toils. 

\ He had before admitted, that the right to declare war 
is vested in the legislature. He here admits, that the 
right to declare war includes the right to judge, whether 
the United States be obliged to declare war or not. Can 
the inference be avoided, that the executive, instead of 
having a similar right to judge, is as much excluded from 
the right to judge as from the right to declare? 

If the right to declare war be an exception out of the 



22 THE PRESIDENT'S CONTROL 

general grant to the executive power, every thing included 
in the right must be included in the exception; and, 
being included in the exception, is excluded from the 

grant. ... . 

There can be no refuge against this conclusion, but 
in the pretext of a concurrent right in both departments 
to judge of the obligations to declare war; and this must 
be intended by the writer, when he says, "It will not 
follow, that the executive is excluded in any case from 
a similar right of judging," &c. . . . 

A concurrent authority in two independent depart- 
ments, to perform the same function with respect to^ the 
same thing, would be as awkward in practice, as it is 
unnatural in theory. 

If the legislature and executive have both a right to 
judge of the obligations to make war or not, it must 
sometimes happen, though not at present, that they will 
judge differently. The executive may proceed to con- 
sider the question to-day ; may determine that the United 
States are not bound to take part in a war, and, in the 
execution of its functions, proclaim that declaration to 
all the world. Tomorrow the legislature may follow in 
the consideration of the same subject; may determine 
that the obligations impose war on the United States, and, 
in the execution of its functions, enter into a constitu- 
tional declaration, expressly contradicting the constitu- 
tional proclamation. 

In what light does this present the constitution to the 
people who established it? In what light would it pre- 
sent to the world a nation, thus speaking, through two 
different organs, equally constitutional and authentic; 
two opposite languages, on the same subject, and undei^ 
the same existing circumstances? 

But it is not with the legislative rights alone that this 
doctrine interferes. The rights of the judiciary may be 
equally invaded. For it is clear that if a right declared 
by the constitution to be legislative, leaves, notwithstand- 
ing, a similar right in the executive, whenever a case 
for exercising it occurs, in the course of its functions; 
a right declared to be judiciary and vested in that de- 



OF FOREIGN RELATIONS 23 

partment may, on the same principle, be assumed and 
exercised by the executive in the course of its functions; 
and it is evident that occasions and pretexts for the latter 
interference may be as frequent as for the former. So 
again the judiciary department may find equal occasions 
in the execution of its functions, for usurping the author- 
ities of the executive; and the legislature for stepping 
into the jurisdiction of both. And thus all the powers 
of government, of which a partition is so carefully made 
among the several branches, would be thrown into abso- 
lute hotchpot, and exposed to a general scramble. . . . 

No. 3 

In order to give colour to a right in the executive to 
exercise the legislative power of judging, whether there 
be a cause of war in a public stipulation — two other 
arguments are subjoined by the writer to that last 
examined. 

The first is simply this : 'Tt is the right and duty of 
the executive to judge of and interpret those articles of 
our treaties which give to France particular privileges, 
in order to the enforcement of those privileges" ; from 
which it is stated, as a necessary consequence, that the 
executive has certain other rights, among which is the 
right in question. 

This argument is answered by a very obvious dis- 
tinction. The first right is essential to the execution of 
the treaty, as a law in operation, and interferes with no 
right vested in another department. The second, viz., 
the right in question, is not essential to the execution 
of the treaty, or any other law: on the contrary, the 
article to which the right is applied cannot, as has been 
shown, from the very nature of it, be in operation as a 
law, without a previous declaration of the legislature; 
and all the laws to be enforced by the executive remain, 
in the mean time, precisely the same, whatever be the 
disposition or judgment of the executive. This second 
right would also interfere with a right acknowledged 
to be in the legislative department. 

If nothing else could suggest this distinction tQ t;hQ 



24 THE PRESIDENT'S CON OL 

writer, he ought to have been reminded of it by his own 
words, ''in order to the enforcement of those privileges" 

Was it in order to the enforcement of the article of 

guaranty, that the right is ascribed to the executive? 

The other of the two arguments reduces itself mto 
the following form: the executive has the right to receive 
public ministers ; this right includes the right of deciding, 
in the case of a revolution, whether the new government, 
sending the minister, ought to be recognised, or not; 
and this, again, the right to give or refuse operation 
to preexisting treaties. 

The power of the legislature to declare war, and judge 
of the causes for declaring it, is one of the most express 
and explicit parts of the constitution. To endeavour to 
abridge or affect it by strained inferences, and by hypo- 
thetical or singular occurrences, naturally warns the 
reader of some lurking fallacy. 

The words of the constitution are, "He (the president) 
shall receive ambassadors, other public ministers, and 
consuls.'' I shall not undertake to examine, what would 
be the precise extent and eflfect of this function in various 
cases which fancy may suggest, or which time may pro- 
duce. It will be more proper to observe, in general, and 
every candid reader will second the observation, that 
little, if anything, more was intended by the clause, than 
to provide for a particular mode of communication, 
almost grown into a right among modern nations; by 
pointing out the department of the government, most 
proper f or_ the ceremony of admitting public ministers, 
of examining their credentials, and of authenticating 
their title to the privileges annexed to their character 
by the law of nations. This being the apparent design 
of the constitution, it would be highly improper to mag- 
nify the function into an important prerogative, even 
where no rights of other departments could be affected 
by it. . . . 

But how does it follow from the function to receive 
ambassadors and other public ministers, that so conse- 
quential a prerogative may be exercised by the executive ? 
When a foreign minister presents himself; two questions 



( FOREIGN RELATIONS 25 

immediately arise: Are his credentials from the exist- 
ing and acting government of his country? Are they 
properly authenticated? These questions belong of ne- 
cessity to the executive; but they involve no cognizance 
of the question, whether those exercising the government 
have the right along with the possession. This belongs 
to the nation, and to the nation alone, on whom the gov- 
ernment operates. The questions before the executive 
are merely questions of fact; and the executive would 
have precisely the same right, or rather be under the 
same necessity of deciding them, if its function was 
simply to receive without any discretion to reject public 
ministers. It is evident, therefore, that if the executive 
has a right to reject a public minister, it must be founded 
on some other consideration than a change in the govern- 
ment, or the newness of the government; and conse- 
quently a right to refuse to acknowledge a new govern- 
ment cannot be implied by the right to refuse a public 
minister. 

It is not denied that there may be cases in which a 
respect to the general principles of liberty, the essential 
rights of the people, or the overruling sentiments of 
humanity, might require a government, whether new or 
old, to be treated as an illegitimate despotism. Such are 
in fact discussed and admitted by the most approved 
authorities. But they are great and extraordinary cases, 
by no means submitted to so limited an organ of the 
national will as the executive of the United States; and 
certainly not to be brought by any torture of words, 
within the right to receive ambassadors. 

That the authority of the executive does not extend 
to a question, whether an existing government ought to 
be recognised or not, will still more clearly appear from 
an examination of the next inference of the writer, to 
wit: that the executive has a right to give or refuse 
activity and operation to preexisting treaties. 

If there be a principle that ought not to be questioned 
within the United States, it is, that every nation has a 
right to abolish an old government and establish a new 
one. This principle is not only recorded in every public 
archive, written in every American heart, and sealed with 



26 THE PRESIDENT'S CONTROL 

the blood of a host of American martyrs ; but is the only 
lawful tenure by which the United States hold their 
existence as a nation. 

It is a principle incorporated with the above, that gov- 
ernments are established for the national good, and are 
organs of the national will. 

From these two principles results a third, that treaties 
formed by the government, are treaties of the nation, 
unless otherwise expressed in the treaties. . . . 

As a change of government then makes no change in 
the obligations or rights of the party to a treaty, it is 
clear that the executive can have no more right to sus- 
pend or prevent the operation of a treaty, on account of 
the change, than to suspend or prevent the operation, 
where no such change has happened. Nor can it have 
any more right to suspend the operation of a treaty in 
force as a law, than to suspend the operation of any 
other law. . . . 

Yet allowing it to be, as contended, that a suspension 
of treaties might happen from a consequential operation 
of a right to receive public ministers, which is an express 
right vested by the constitution; it could be no proof, 
that the same or a similar effect could be produced by 
the direct operation of a constructive power. 

Hence the embarrassments and gross contradictions of 
the writer in defining, and applying his ultimate infer- 
ence from the operation of the executive power with 
regard to public ministers. 

At first it exhibits an "important instance of the right 
of the executive to decide the obligation of the nation 
with regard to foreign nations." 

^^ Rising from that, it confers on the executive, a right 
"to put the United States in a condition to become an 
associate in war." 

And at its full height, it authorizes the executive "to 
lay the legislature under am obligation of declaring war." 

From this towering prerogative, it suddenly brings 
down the executive to the right of ''consequentially af- 
fecting the proper or improper exercise of the power of 
the legislature to declare war." 

And then, by a caprice as unexpected as it is sudden 



OF FOREIGN RELATIONS 27 

it espouses the cause of the legislature; rescues it from 
the executive right "to lay it under an obligation of de- 
claring war"; and asserts it to be "free to perform its 
own duties according to its own sense of them," without 
any other control than what it is liable to, in every other 
legislative act. 

The point at which it finally seems to rest, is, that "the 
executive, in the exercise of its constitutional powers, 
may establish an antecedent state of things, which ought 
to weigh in the legislative decisions'' ; a prerogative which 
will import a great deal, or nothing, according to the 
handle by which you take it ; and which at the same time, 
you can take by no handle that does not clash with some 
inference preceding. 

If "by weighing in the legislative decisions" he meant 
having an influence on the expediency of this or that 
decision in the opinion of the legislature ; this is no more 
than what every antecedent state of things ought to have, 
from whatever cause proceeding ; whether from the use 
or abuse of constitutional powers, or from the exercise 
of constitutional or assumed powers. In this sense, the 
power to establish an antecedent state of things is not 
contested. But then it is of no use to the writer, and 
is also in direct contradiction to the inference, that the 
executive may "lay the legislature under an obligation 
to decide in favour of war'' 

If the meaning be as is implied by the force of the 
terms "constitutional powers," that the antecedent state 
of things produced by the executive, ought to have a 
constitutional weight with the legislature; or, in plainer 
words, imposes a constitutional obligation on the legisla- 
tive decisions; the writer will not only have to combat 
the arguments by which such a prerogative has been dis- 
proved; but to reconcile it with his last concession, that 
"the legislature is free to perform its duties according 
to its own sense of them." He must show that the legis- 
lature is, at the same time constitutionally free to pursue 
its own judgment, and constitutionally bound by the judg- 
ment of the executive.^ 

^The Writings of James Madison (Gaillard Hunt, Editor), 
VI, p. 138 ff. 



28 THE PRESIDENT'S CONTROL 

Hamilton's argument is reducible to two proposi- 
tions: first, that the conduct of the foreign relations 
of a state is in its nature an executive function and 
therefore, except where the Constitution provides 
otherwise, belongs to the President, upon whom the 
Constitution bestows "the executive power"; secondly, 
that the possession by Congress of the power to de- 
clare war, and similar powers, does not diminish the 
discretion of the President in the exercise of the 
powers constitutionally belonging to him, and vice 
versa. Madison's answer likewise comprises two main 
points: first, he attempts to elbow aside the claims 
of the "executive power" to determine foreign rela- 
tions by bringing into the foreground the war de- 
claring power of Congress; secondly, he urges the 
inconvenience and confusion likely to flow from the 
conception of concurrent discretionary powers in the 
hands of different departments. 

The great shortcoming of Madison's argument, with 
all its logical acuteness, is its negative character, its 
failure to suggest either a logical or a practicable con- 
struction of the Constitution to take the place of the 
one it combats. Also, Madison's argument is some- 
what inconsistent with arguments made by him both 
before this date and afterward. Thus he here implies 
that the "executive power" with which the President 
is vested by the opening clause of Article H is not to 
be taken as bestowing other powers than those more 
specifically mentioned in the rest of the article. Yet 
when, in 1789, the question of the location of the 



OF FOREIGN RELATIONS 29 

power of removal, which is not dealt with by name 
in the Constitution, was before Congress, he had made 
the following argument: 

The constitution affirms, that the executive power shall 
be vested in the president. Are there exceptions to this 
proposition ? Yes, there are. The constitution says that, 
in appointing to office, the senate shall be associated with 
the president, unless in the case of inferior officers, when 
the law shall otherwise direct. Have we a right to ex- 
tend this exception? I believe not. If the constitution 
has invested all executive power in the president, I ven- 
ture to assert, that the legislature has no right to diminish 
or modify his executive authority. 

The question now resolves itself into this. Is the power 
of displacing an executive power? I conceive that if 
any power whatsoever is in its nature executive, it is 
the power of appointing, overseeing, and controlling those 
who execute the laws. If the constitution had not quali- 
fied the power of the president in appointing to office, 
by associating the senate with him in that business, would 
it not be clear that he would have the right, by virtue 
of his executive power, to make such appointment? 
Should we be authorised, in defiance of that clause in 
the constitution — "The executive power shall be vested 
in a president," to unite the senate with the president in 
the appointment to office? I conceive not. If it is ad- 
mitted we should not be authorised to do this, I think 
it may be disputed whether we have a right to associate 
them in removing persons from office, the one power 
being as much of an executive nature as the other; and 
the first only is authorised by being excepted out of the 
general rule established by the constitution, in these 
words, ''The executive power shall be vested in the 
president."^ 

It may be true, as Madison says, in a passage 

6 Elliot's Debates (Phila., 1836), IV, pp. 343-4. 



30 THE PRESIDENT'S CONTROL 

quoted above, that there is no analogy between the 
power of declaring war or that of making treaties and 
the power of removal. But that fact hardly removes 
the inconsistency that results from his invoking the 
opening clause of Article II as a source of Presi- 
dential power/ 
. / Again, in 1796, Madison was among the foremost 
^ of those who insisted upon the right of the House of 
Representatives to pass upon the merits of the Jay 
Treaty preliminary to voting the money necessary to 
carry it into execution. He was unquestionably cor- 
rect in his position; but if so, then so was Hamilton 
correct in insisting upon the constitutional right of 
the President to declare the neutrality of the United 
States even though subsequently Congress might de- 
termine to declare war. 

Finally, in connection with the general question of 
the scope of the executive power of the President, it 
is interesting to consider the following passages from 
the opinion of Justice Brewer in the case of Kansas v. 
Colorado, where the immediate question before the 
Court was the scope of the "judicial power" conferred 
upon the courts of the United States by Article III 
of the Constitution : 

^The question of recognition, which Hamilton and Madison 
touch upon incidentally, is dealt with infra, in Part II, Chapter 
II, Section 5. By the great weight of authority, it is an execu- 
tive function; but Madison was right in his statement of the 
essential principle governing its exercise, namely, that new gov- 
ernments or communities are to be viewed, not as legitimate or 
illegitimate, but simply as political entities. However, a recent 
departure from this doctrine is noted infra. 



OF FOREIGN RELATIONS 31 

In the Constitution are provisions in separate articles 
for the three great departments of government, — legisla- 
tive, executive, and judicial. But there is this significant 
difference in the grants of powers to these departments : 
The first article, treating of legislative powers, does not 
make a general grant of legislative power. It reads : 
'Article I, Par. i. All legislative powers herein granted 
shall be vested in a Congress.' etc. ; and then in section 8, 
mentions and defines the legislative powers that are 
granted. By reason of the fact that there is no general 
grant of legislative power it has become an accepted 
constitutional rule that this is a government of enu- 
merated powers. . . . 

On the other hand, in article 3, which treats of the 
judicial department ... we find that Par. i reads that 
'the judicial power of the United States shall be vested 
in one Supreme Court, and in such inferior courts as 
the Congress may from time to time ordain and estab- 
lish.' By this is granted the entire judicial power of 
the nation. Section 2, which provides that 'the judicial 
power shall extend to all cases, in law and equity, arising 
under this Constitution, the laws of the United States," 
etc., is not a limitation nor an enumeration. It is a 
definite declaration, — a provision that the judicial power 
shall extend to — that is, shall include — ^the several mat- 
ters particularly mentioned, leaving unrestricted the gen- 
eral grant of the entire judicial power. There may be, 
of course, limitations on that grant of power, but, if there 
are any, they must be expressed; for otherwise the gen- 
eral grant would vest in the courts all the judicial power 
which the new nation was capable of exercising. . . . 

Speaking generally, it may be observed that the judicial 
power of a nation extends to all controversies justiciable 
in their nature, and the parties to which or the property 
involved in which may be reached by judicial process, 
and, when the judicial power of the United States was 
vested in the Supreme and other courts, all the judicial 
power which the nation was capable of exercising was 
vested in those tribunals; and unless there be some lim- 
itations expressed in the Constitution it must be held to 



32 CONTROL OF FOREIGN RELATIONS 

embrace all controversies of a justiciable nature arising 
within the territorial limits of the nation, no matter who 
may be the parties thereto. . . . 

These considerations lead to the propositions that when 
a legislative power is claimed for the national govern- 
ment the question is whether that power is one of those 
granted by the Constitution, either in terms or by neces- 
sary implication; whereas, in respect to judicial func- 
tions, the question is whether there be any limitations 
expressed in the Constitution on the general grant of 
national power.^ 

The source of this line of reasoning is obviously 
Hamilton's argument, which it may be regarded as 
clothing with judicial sanction. 

8 206 U. S. 46, 81-3. 



PART TWO: TOPICS AND PRECEDENTS 

CHAPTER II 

Diplomatic Intercourse, Its Incidents and 
Agents — Recognition 

I — The President is the organ of diplomatic inter- 
course of the Government of the United States, first, 
because of his powers in connection with the reception 
and dispatch of diplomatic agents and with treaty 
making; secondly, because of the tradition of executive 
power adherent to his office. 

A dependable British authority points out that the 
making of treaties and all matters affecting the foreign 
relations of Great Britain fall to the royal prerogative, 
that until late years treaties were not brought before 
Parliament until after ratification, and that the initia- 
tion of the foreign policy of the Kingdom belongs to 
the executive exclusively/ 

The view which was held of executive power at the 
time of the adoption of the Constitution is also to be 
found exemplified in the early State Constitutions. 
On this point President Goodnow remarks as follows : 

The American conception of the executive power pre- 
vailing at the time of the adoption of the United States 
Constitution corresponded with that part of the executive 

1 Todd, Parliamentary Government, I, pp. 307-9. 

33 



34 THE PRESIDENT'S CONTROL 

power which has been called political. The great excep- 
tion to this statement is to be found in the fact that the 
carrying on of the foreign relations was not included 
within the powers of the state governor. This exception 
does not, however, prove that the diplomatic power was 
not considered a part of the executive power. The 
omission of the diplomatic power from among the powers 
of the governor was due entirely to the peculiar position 
of the colonies and later of the states. The care of the 
foreign relations was not in the governor's hands, simply 
because during the colonial period the mother country, 
and during the existence of the states as sovereign states 
the Continental Congress, attended to the matter.- 

The views of certain theoretical writers who were 
influential with the framers of the Constitution are 
likewise in point in this connection. Thus Locke, in 
his ''Second Treatise on Civil Government," writes as 
follows of the conduct of his Commonwealth's rela- 
tions with other states : 

There is another power in every commonwealth which 
one may call natural, because it is that which answers 
to the power every man naturally had before he entered 
into society. For though in a commonwealth the mem- 
bers of it are distinct persons still, in reference to one 
another, and, as such, are governed by the laws of the 
society, yet, in reference to the rest of mankind, they 
make one body, which is, as every member of it before 
was, still in the state of Nature with the rest of mankind, 
so that the controversies that happen between any man 
of the society with those that are out of it are managed 
by the public, and an injury done to a member of their 
body engages the whole in the reparation of it. . . . 
This, therefore, contains the power of war and peace 
leagues and alliances, and all the transactions with all 
persons and communities without the commonwealth 
and may be called federative if any one .pleases. So the 

^Principles of Administrative Law in the United States, p. 70. 



OF FOREIGN RELATIONS 35 

thing be understood, I am indifferent as to the name. . . . 
Though, as I said, the executive and federative power 
of every community be really distinct in themselves, yet 
they are hardly to be separated and placed at the same 
time in the hands of distinct persons. For both of them 
requiring the force of the society for their exercise, it is 
almost impracticable to place the force of the common- 
wealth in distinct and not subordinate hands, or that the 
executive and federative power should be placed in per- 
sons that might act separately, whereby the force of the 
public would be under different commands, which would 
be apt some time or other to cause disorder and ruin.^ 

Another work of vast influence with the framers 
of the Constitution was Montesquieu's '^Spirit of the 
Laws," wHich describes executive power in the follow- 
ing passage : 

In every government there are three sorts of power: 
the legislative; the executive in respect to things depend- 
ent on the law of nations ; and the executive in regard to 
matters that depend on the civil law. 

By virtue of the first, the prince or magistrate enacts 
temporary or perpetual laws, and amends or abrogates 
those that have been already enacted. By the second, he 
makes peace or war, sends or receives embassies, estab- 
lishes the public security, and provides against invasions. 
By the third, he punishes criminals, or determines the 
disputes that arise between individuals. The latter we 
shall call the judiciary power, and the other simply the 
executive power of the state.* 

2 — But if the President is the organ of diplomatic 
intercourse with other states, two things follow: first 
that this power is presumptively his alone, even though 
the powers of other organs may frequently produce 

3 Op. cit, §§ 145-6, 148. 
* Op. cit, bk. XI, ch. 6. 



36 THE PRESIDENT'S CONTROL 

like results ; second, that his discretion in its discharge 
is not legally subject to any other organ of govern- 
ment, albeit it may clash with a like discretion in such 
organ in the discharge of its own constitutional func- 
tions. With regard to the first of these propositions 
the following passage from a report of the Foreign 
Relations Committee of the Senate is in point: 

// any given power belongs to the executive branch 
of the Government, presumptively it does not belong to 
the legislative branch. 

It is clear all through the Constitution, and has never 
been disputed, that the intention was to distribute the 
powers of the Government between its three branches, 
subject to such checks as the veto of the President or 
advice and consent of the Senate; and not to place any 
given power in two or all three branches of the Govern- 
ment concurrently. 

The existence of the same power for the same purposes 
in both the legislative and executive branches of the Gov- 
ernment might lead to most unfortunate results. For in- 
stance, if the legislative and executive branches both 
possessed the power of recognizing the independence of 
a foreign nation, and one branch should declare it inde- 
pendent while the other denied its independence, then, 
since they are coordinate, how could the problem be 
solved by the judicial branch? 

The distinction must be borne in mind between the 
existence of a constitutional power and the existence 
of an ability to effect certain results. For instance, Con- 
gress alone has the power to declare war. The Execu- 
tive, however, can do many acts which would constitute 
a casus belli, and thus indirectly result in war; but this 
does not imply in the Executive a concurrent power to 
declare war, and the war which would result would be 
one declared by a foreign power. It is possible, even, 
that the judiciary, by declaring some act of Congress at 
an inopportune moment to be unconstitutional or other- 
wise incapable of execution according to its intent, or by 



OF FOREIGN RELATIONS 37 

some decision in a prize cause or otherwise, could give 
rise to a war with a foreign power, yet no one would 
claim that the judiciary had the power to declare war. 

Going yet further even, a State of the Union, although 
having admittedly no power whatever in foreign rela- 
tions, may take action uncontrollable by the Federal 
Government, and which, if not properly a casus belli, 
might nevertheless as a practical matter afford to some 
foreign nation the excuse of a declaration of war. We 
may instance the action which might have been taken 
by the State of Wyoming in relation to the Chinese 
massacres, or the State of Louisiana in relation to the 
Italian lynchings, or by the State of New York in its 
recent controversy with German insurance companies 
with relation to the treatment of its own insurance com- 
panies by Germany.^ 

The necessity of preserving to the President his full 
constitutional discretion in the conduct of our foreign 
relations was appreciated from the outset, as is shown 
by the following record of a speech made in the Senate 
during its first session, when the bill for establishing 
the Department of Foreign Affairs was before that 
body: 

The Senate met, and one of the bills for organizing one 
of the public departments — ^that of Foreign Affairs — 
was taken up. After being read, I begged leave of the 
Chair to submit some general observations, which, though 
apparently diffuse, I considered as pertinent to the bill 
before us, the first clause of which was, "There shall be 
an Executive Department," etc. There are a number of 
such bills, and may be many more, tending to direct the 
most minute particle of the President's conduct. If he 
is to be directed, how he shall do everything, it follows 
he must do nothing without direction. To what purpose, 
then, is the executive power lodged with the President, 

^ Sen. Doc. 56, 54 Cong., 2 Sess., pp. 4-5. (Cited hereafter as 
"Sen. Doc. 56.") 



38 THE PRESIDENT'S CONTROL 

if he can do nothing without a law directing the mode, 
manner, and, of course, the thing to be done? May not 
the two Houses of Congress, on this principle, pass a 
law depriving him of all powers? You may say it will 
not get his approbation. But two thirds of both Houses 
will make it a law without him, and the Constitution is 
undone at once. 

Gentlemen may say. How is the Government then to 
proceed on these points? The simplest in the world. 
The President communicates to the Senate that he finds 
such and such officers necessary in the execution of the 
Government, and nominates the man. If the Senate ap- 
proves, they will concur in the measure; if not, refuse 
their consent, etc., when the appointments are made. The 
President, in like manner, communicates to the House 
of Representatives that such appointments have taken 
place, and require adequate salaries. Then the House 
of Representatives might show their concurrence or dis- 
approbation, by providing for the officer or not.® 

Maclay here apparently forgets the power of Con- 
gress to pass all laws "necessary and proper" for 
carrying into execution the power of the other depart- 
ments : for, in point of fact, the bill to which he ob- 
jected carefully left the head of the new department, 
so far as he was made an agency in the conduct of the 
foreign relations of the United States, subject to the 
orders of the President. Thus, the officer was to 

perform and execute such duties as shall from time to 
time be enjoined on or intrusted to him by the President 
of the United States, agreeable to the Constitution, rela- 
tive to correspondence, commissions, or instructions to 
or with public ministers, or consuls from the United 
States, or to negotiations with public ministers from for- 
eign States or princes, or to memorials or other applica- 
tions from foreign public ministers or other foreigners, 

^Journal of William Maclay (N. Y., 1890), pp. 109-10. 



OF FOREIGN RELATIONS 39 

or to such other matters respecting foreign affairs as the 
President of the United States shall assign to the said 
Department, and, furthermore, that the said principal 
officer shall conduct the business of the said Department 
in such manner as the President of the United States shall 
from time to time order or instruct."^ 

The act thus offers an interesting contrast to the act 
establishing the Treasury Department, which Congress 
regarded as primarily an organ for the carrying out 
of powers entrusted to it and which, therefore, it made 
subject to its order. 

The discretion of the President within his field as 
the organ of communication with foreign nations is 
again emphasized in the following words of Chief 
Justice Marshall : 

By the Constitution of the United States, the President 
is invested with certain important political powers, in 
the exercise of which he is to use his own discretion, 
and is accountable only to his country in his political 
character and to his own conscience. To aid him in the 
performance of these duties, he is authorized to appoint 
certain officers, who act by his authority, and in con- 
formity with his orders. In such cases their acts are 
his acts ; and whatever discretion may be used, still there 
exists, and can exist no power to control that discretion. 
The subjects are political. They respect the Nation, not 
individual rights, and, being intrusted to the executive, 
the decision of the executive is conclusive. The applica- 
tion of this remark will be perceived by adverting to the 
act of Congress for establishing the department of for- 
eign affairs. This officer as his duties were prescribed 
by that act, is to conform precisely to the will of the 
President. He is the mere organ by whom that will is 
to be communicated. The acts of such an officer, can 
never be examined by the courts.^ 

7 I Stat. L. 28. 

^ Marbury v. Madison, i Cranch 137, 165-6. 



40 THE PRESIDENT'S CONTROL 

'^' But though neither Congress nor the courts may 
direct the President in the discharge of his constitu- 
tional powers, yet either the Senate or the House 
separately, or both concurrently, may pass resolutions 
expressive of their desires in relation to questions of 
an international character, and the President may give 
such resolutions any weight he chooses, notwithstand- 
ing that they have no legal effect. Indeed, it is a part 
of the President's discretion to pay heed to such reso- 
lutions or not, as he elects. 

Sometimes, however. Congress or one of the houses 
has endeavored to go beyond an informal tendering 
of advice to the President and has sought to force his 
hand in some matter affecting his foreign policy. A 
noteworthy instance of this sort occurred in 1826, 
when opponents of the Panama Congress sought to 
attach to the appropriation bill for the mission certain 
conditions to it.® Their efforts were frustrated, the 
principal argument on the constitutional question being 
that offered by Webster : 

He would recapitulate only his objections to this 
amendment. It was unprecedented, nothing of the kind 
having been attempted before. It was, in his opinion, 
unconstitutional; as it was taking the proper responsi- 
bility from the Executive and exercising, ourselves, a 
power which, from its nature, belongs to the Executive, 
and not to us. It was prescribing, by the House, the in- 
structions for a Minister abroad. It was nugatory, as 
it attached conditions which might be complied with, or 
might not. And lastly, if gentlemen thought it important 
to express the sense of the House on these subjects, or 

9 Benton's Abridgment of the Debates of Congress (cited here- 
after as "Benton"), IX, p. 91. 



OF FOREIGN RELATIONS 41 

any of them, the regular and customary way was by 
resolution. At present, it seemed to him that we must 
make the appropriation without conditions, or refuse it. 
The President had laid the case before us. If our opinion 
of the character of the meeting, or its objects, led us to 
withhold the appropriation, we had the power to do so. 
If we had not so much confidence in the Executive, as 
to render us willing to trust to the constitutional exercise 
of the Executive power, we have power to refuse the 
money. It is a direct question of aye or no. If the 
Ministers to be sent to Panama may not be trusted to 
act, like other Ministers, under the instructions of the 
Executive, they ought not to go at all.^^ 

Another instance of the same character occurred 
in 1864, when Congress was growing restive at the 
apparent complacency of the Administration at the 
progress of French aggressions in Mexico. On April 
6 of this year Henry Winter Davis, chairman of the 
Foreign Affairs Committee of the House, introduced 
the following resolution: 

Resolved, &c., That the Congress of the United States 
are unwilling, by silence, to leave the nations of the 
world under the impression that they are indifferent 
spectators of the deplorable events now transpiring in 
the Republic of Mexico; and they therefore think fit to 
declare that it does not accord with the policy of the 
United States to acknowledge a monarchial government, 
erected on the ruins of any republican government in 
America, under the auspices of any European power.^^ 

The resolution was passed unanimously, no consti- 
tutional question being suggested. Mr. Seward, how- 
ever, in explaining it to Mr. Dayton, our minister to 
France, wrote that while "It truly interprets the uni- 

10 Ih., pp. 94-5- 

^'^Mc.Vh&vson's History of the Rebellion, p. 349. 



42 THE PRESIDENT'S CONTROL 

form sentiment of the people of the United States in 
reference to Mexico," yet it is 

another and distinct question whether the United States 
would think it necessary or proper to express themselves 
in the form adopted by the House of Representatives at 
this time. This is a practical and purely Executive ques- 
tion, and the decision of it constitutionally belongs not 
to the House of Representatives, nor even to Congress, 
but to the President of the United States. . . . While 
the President receives the declaration of the House of 
Representatives with the profound respect to which it 
is entitled, as an exposition of its sentiments upon a grave 
and important subject, he directs that you inform the 
Government of France that he does not at present con- 
template any departure from the policy which this Gov- 
ernment has hitherto pursued in regard to the war which 
exists between France and Mexico. It is hardly neces- 
sary to say that the proceeding of the House of Repre- 
sentatives was adopted upon suggestions arising within 
itself, and not upon any communication of the Executive 
department; and that the French Government would be 
seasonably apprised of any change of policy upon this 
subject which the President might at any future time 
think it proper to adopt.^^ 

This dispatch of Secretary Seward having been com- 
municated by the President to the House at its re- 
quest, Henry Winter Davis, on June 27, made an 
elaborate report from the Committee on Foreign Af- 
fairs which concluded with the following resolution : 

Resolved, That Congress has a constitutional right to 
an authoritative voice in declaring and prescribing the 
foreign policy of the United States, as well in the recog- 
nition of new powers as in other matters ; and it is the 
constitutional duty of the President to respect that policy, 
not less in diplomatic negotiations than in the use of the 

" Ih., pp. 349-50. 



OF FOREIGN RELATIONS 43 

national forces when authorized by law ; and the propriety 
of any declaration of foreign policy by Congress is suffi- 
ciently proved by the vote which pronounces it ; and such 
proposition while pending and undetermined is not a fit 
topic of diplomatic explanation with any foreign power/^ 

When this resolution came up for debate, the follow- 
ing December 15, Mr. Blaine protested thus: 

To adopt this principle is to start out with a new 
theory in the administration of our foreign affairs, and 
I think the House has justified its sense of self-respect 
and its just appreciation of the spheres of the coordinate 
departments of government by promptly laying the reso- 
lution on the table.^* a. 

The resolution was then amended by striking out 
the word "President" and inserting the words "execu- 
tive departments."^^ It was thereupon passed by an 
overwhelming vote. All like resolutions introduced 
into the Senate failed to come to a vote.^^ 

Much the same question arose again in 1876, when 
the Republic of Pretoria (later the Transvaal Repub- 
lic) sent to Congress its congratulations upon the first 
centennial of our national independence. Mr. Swann 
of Maryland, on December 15 of this year, reported 
from the Committee on Foreign Affairs the follow- 
ing resolution: 

Resolved, That the Secretary of State be requested 
to communicate to the Republic of Pretoria the high ap- 
preciation by the House of Representatives of the com- 
plimentary terms in which said Republic has referred to 

^Uh., p. 354. 

'^^Sen. Doc. 56, p. 47. 
1® McPherson, p. 349. 



44 THE PRESIDENT'S CONTROL 

the first centennial of our national independence in their 
resolutions to this House in May last/^ 

On the motion of Mr. Kasson of Iowa, the resolu- 
tion was amended so as to make it a joint resolution. 
It was then passed, no constitutional objection being 
raised; and a similar resolution was at the same time 
passed in response to congratulations from the Argen- 
tine Republic. On January ii, 1877, the two resolu- 
tions were reported from the Senate Committee on 
Foreign Relations and passed the Senate unanimously 
without debate. On January 26, President Grant 
vetoed the resolutions on the following grounds: 

Sympathizing as I do in the spirit of courtesy and 
friendly recognition which has prompted the passage of 
these resolutions, I can not escape the conviction that 
their adoption has inadvertently involved the exercise 
of a power which infringes upon the constitutional rights 
of the Executive. . . . The Constitution of the United 
States, following the established usage of nations, has 
indicated the President as the agent to represent the 
national sovereignty in its intercourse with foreign 
powers, and to receive all official communications from 
them, . . . making him, in the language of one of the 
most eminent writers on constitutional law, ''the consti- 
tutional organ of communication with foreign States." 
If Congress can direct the correspondence of the Secre- 
tary of State with foreign Governments, a case very 
different from that now under consideration might arise, 
when that officer might be directed to present to the same 
foreign Government entirely different and antagonistic 
views or statements.^^ 

Inasmuch as the resolutions in question used only 

^'^ Sen. Doc. 56, p. 49. 
^^Ib., p. 48. 



OF FOREIGN RELATIONS 45 

the language of a request, it may seem that the Presi- 
dent was unduly jealous of his constitutional preroga- 
tive. His attitude is probably accounted for by the 
fact that the resolutions were joint resolutions. This 
fact brought before him, he evidently believed, the 
question whether the national legislature had any 
legislative power in the premises, and this he very 
warrantably denied. 

Still it can hardly be doubted that Congressional 
resolutions of the sort we have been considering have 
often furnished the President valuable guidance in the 
shaping of his foreign policy in conformity with public 
opinion. Thus the resolutions which were passed by 
the Senate and House separately in the second session 
of the Fifty-third Congress, warning the President 
against the employment of forces to restore the mon- 
archy of Hawaii, probably saved the Administration 
from a fatal error.^^ Again, the notorious McLemore 
resolution, requesting the President "to warn all citi- 
zens of the United States to refrain from travelling 
on armed merchant vessels," though ill judged enough 
as to content, did nevertheless furnish the Administra- 
tion a valuable hint as to the state of the public mind, 
and one which it was quick to take.^'' For the Presi- 

19 See Record, 53 Cong., 2 Sess., pp. 1814, 1525, 1838, 1879, 
1942, 2000, 5127, 5499. 

20 H Res. 147, 64 Cong., i Sess. For some protests against 
the Resolution as an embarrassment to the President and an 
invasion of his powers, see Record, pp. 3700-4. In his letter to 
Mr. Pou, the President asked for an early vote on the Resolu- 
tion, in order that "all doubts and conjectures may be swept 
away, and our foreign relations once more cleared of damaging 
misunderstandings." These proceedings occurred in March, 1916. 



46 THE PRESIDENT'S CONTROL 

dent, even in the exercise of his most unquestioned 
powers, cannot act in a vacuum. He must ultimately 
have the support of public sentiment. 

3 — First among the constituent powers of the Presi- 
dent as the organ of communication with foreign gov- 
ernments is his power to "receive ambassadors and 
other public ministers." 

The first point to be made clear about this phrase- 
ology is that, in the words of Attorney-General Gush- 
ing, it means "all possible diplomatic agents, which 
any power may accredit to the United States."^^ 

Also as a practical construction of the Gonstitution, 
it includes all foreign consular agents, who therefore 
may not exercise their functions in the United States 
without an exequatur from the President.^^ 

Again, the right to receive ambassadors, ministers, 
and consuls includes the right to refuse to receive 
them, to request their recall, to dismiss them, and to 
determine their eligibility under our laws.^^ 

Again, the power of the President to receive is ex- 
clusive. This was early determined; in connection 
with which, the following "Minutes of a Conversa- 
tion" which took place July lo, 1793, between Jeffer- 
son, then Secretary of State, and Citizen Genet, envoy 
of the first French Republic, is pertinent: 

He asked if they [Congress] were not the sovereign. 
I told him no, they were sovereign in making laws only, 
the executive was sovereign in executing them, and the 

21 7 Opinions of Attorneys-General, 209. , 

22 J. B. Moore, Digest, V, pp. 15-9. 
23/&., IV, pp. 473-548; V, pp. 19-32. 



OF FOREIGN RELATIONS 47 

judiciary in constructing them where they related to their 
department. "But," said he, "at least. Congress are 
bound to see that the treaties are observed." I told him 
no; there were very few cases indeed arising out of 
treaties, which they could take notice of; that the Presi- 
dent is to see that treaties are observed. "If he decides 
against the treaty, to whom is a nation to appeal?" I 
told him the Constitution had made the President the 
last appeal. He made me a bow, and said, that indeed 
he would not make me his compliments on such a Con- 
stitution, expressed the utmost astonishment at it, and 
seemed never before to have had such an idea.^* 

A few months later Genet requested an exequatur 
for a consul whose commission was addressed to 
"The Congress of the United States." Jefferson re- 
plied that, 

as the President was the only channel of communica- 
tion between the United States and foreign nations, it 
was from him alone "that foreign nations or their agents 
are to learn what is or has been the will of the nation" ; 
that whatever he communicated as such, they had a right 
and were bound to consider "as the expression of the 
nation"; and that no foreign agent could be "allowed 
to question it," or "to interpose between him and any 
other branch of government, under the pretext of cither's 
transgressing their functions." Mr. Jefferson therefore 
declined to enter into any discussion of the question as 
to whether it belonged to the President under the Con- 
stitution to admit or exclude foreign agents. "I inform 
you of the fact," he said, "by authority from the Presi- 
dent." Mr. Jefferson therefore returned the consul's 
commission and declared that the President would issue 
no exequatur to a consul except upon a commission cor- 
rectly addressed.^^ 

24/&., IV, pp. 680-1. 

26 lb., p. 680. 



48 THE PRESIDENT'S CONTROL 

In the same connection the following circular letter, 
which was sent out by the Secretary of State in 1833, 
to the charges of the United States at various capitals, 
is interesting: 

Sir: It is observed that special communications from 
foreign powers intended for the Executive of the United 
States have been usually addressed to the President and 
Congress of the United States. 

This style was introduced under the old confederation 
and was then perfectly proper, but since the Federal 
Constitution has been formed its inaccuracy is apparent, 
the whole executive power, particularly that of foreign 
intercourse, being vested in the President. You will 
therefore address a note to the minister for foreign af- 
fairs, apprising him that all communications made directly 
to the head of our executive government should be ad- 
dressed "To the President of the United States of Amer- 
ica," without any other addition. 

You will, of course, observe that this relates solely to 
those communications of ceremony which are made from 
one sovereign to another, for example, notices of births, 
deaths, changes in government, etc., and does not relate 
to the ordinary diplomatic intercourse, which is to be 
carried on as usual through this Department. 

I am, respectfully, your obedient servant, 

Edward Livingston.^* 

Diplomatic usage is today so well settled in this re- 
spect that any departure from it appears most extraor- 
dinary. Such an occurrence, which is still fresh in the 
minds of all, is that referred to by the Secretary of 
State in the first Lusitania note, in the following 
terms : 

26 Sen. Doc. 56, p. 9, footnote. See also J. Q. Adams, Memoirs, 
IV, pp. 17-8. 



OF FOREIGN RELATIONS 49 

There was recently published in the newspapers of the 
United States, I regret to inform the Imperial German 
Government, a formal warning, purporting to come from 
the Imperial German Embassy at Washington, addressed 
to the people of the United States, and stating, in effect, 
that any citizen of the United States who exercised his 
right of free travel upon the seas would do so at his 
peril if his journey should take him within the zone of 
waters within which the Imperial German Navy was 
using submarines against the commerce of Great Britain 
and France, notwithstanding the respectful but very 
earnest protest of his Government, the Government of 
the United States. I do not refer to this for the purpose 
of calling the attention of the Imperial German Govern- 
ment at this time to the surprising irregularity of a com- 
munication from the Imperial German Embassy at Wash- 
ington addressed to the people of the United States 
through the newspapers, but only for the purpose of 
pointing out that no warning that an unlawful and in- 
humane act will be committed can possibly be accepted 
as an excuse or palliation for that act or as an abatement 
of the responsibility for its commission.' 



27 



4 — The second ingredient of the President's power 
as the organ of communication with foreign states is 
his power to nominate and, with the advice and con- 
sent of the Senate, to appoint "ambassadors, other 
public ministers, and consuls." With reference to the 
scope of this power three famous controversies arose 
early in the history of the country which should be 
reviewed here briefly. 

The first arose over the action of President Madi- 
son in appointing, during a recess of the Senate, the 
commission which negotiated for the United States 

27 Secretary of State Bryan to American Ambassador at 
Berlin, May 13, IQIS- 



50 THE PRESIDENT'S CONTROL 

the Treaty of Ghent. Upon the convening of the 
Senate a few months later the President sent in his 
nominations for this commission, which had already 
gone abroad, for approval by the Senate. Thereupon 
Senator Gore of Massachusetts offered the following 
resolutions : 

The President of the United States having by the con- 
stitution power to fill up all vacancies that may happen 
during the recess of the Senate, by granting commissions 
which shall expire at the end of their next session : 

Resolved, That in the opinion of the Senate, no such 
vacancy can happen in any office not before full. . . . 

Resolved, That the granting of commissions to Albert 
Gallatin, John Q. Adams, and James A. Bayard, to be 
Envoys Extraordinary and Ministers Plenipotentiary, to 
negotiate and sign a treaty of peace with the United 
Kingdom of Great Britain and Ireland, during the late 
recess of the Senate, as in the President's Message to 
the Senate of the twenty-ninth day of May last, is stated 
to have been done, was not, in the opinion of the Senate, 
authorized by the constitution, inasmuch as a vacancy 
in that office did not happen during such recess of the 
Senate, and as the Senate had not advised and consented 
to their appointment.^^ 

The two following passages from his speech upon 
these resolutions makes Senator Gore's position some- 
what clearer: 

The power of appointment is vested, conjointly in two 
branches of the Government. A case is described, in 
which one branch may, under special circumstances, exer- 
cise a modified power. What is that case? It is the 
case of a vacancy in an office, a vacancy of a certain 
and definitive character, viz : a vacancy that may happen 
during the recess of the Senate. If the vacancy happen 

28 Benton, V, p. 85. 



OF FOREIGN RELATIONS * 51 

at another time, it is not the case described by the con- 
stitution; for that specifies the precise space of time 
wherein the vacancy must happen, and the times which 
define this period bring it emphatically within the ancient 
and well established maxim: ^'Expressio unius est ex- 
clusio alterius." 

It has been suggested, that the President has a right, 
by the constitution, to create the office of Ambassadors 
and other public Ministers. An office is created by the 
constitution, or by some power under it. Prior to its 
being so created, it does not exist. Whatever power is 
granted, as regards the appointment of public Ministers, 
is in that clause which says, "the President shall nomi- 
nate, and, by and with the advice and consent of the 
Senate, shall appoint." If this, then be the power of 
creating the office, it must be an actual appointment, and 
that can be only by the President and Senate. No other 
authority than what is embraced by these words can be 
found for the creation of the office of public Minister, 
and this is not in the President alone, but in the President 
and Senate. In other words, the appointment makes the 
office and the appointment cannot be made without the 
concurrent judgment of these two great organs of the 
Government.^^ 

Senator Gore's position was promptly challenged by 
Senator Bibb of Georgia, on the following grounds : 

The true interpretation of this part of the constitution 
I take to be this : — that the Executive may fill all offices 
which from whatever causes happen to be vacant or un- 
occupied during the recess of the Senate, without regard 
to the precise period when they became so. The object 
unquestionably was to avoid inconveniences which might 
result to the nation from essential offices being vacant; 
and certainly these inconveniences can neither be in- 
creased nor diminished by the fact, that the vacancy did 
or did not happen while the Senate were in session. But 

29/&., pp. 86-7. 



52 THE PRESIDENT'S CONTROL 

I will not take this ground on the present occasion. I 
will agree with the gentleman from Massachusetts, that 
the President is not authorized to fill vacancies unless 
they happen during the recess of the Senate ;_ and still 
deny that the principle assumed in his resolution is de- 
ducible from the premises. 

I deny that the word "vacancy," in its usual accepta- 
tion or in its application to office, implies a previous fill- 
ing; and I call upon him to produce the authority of 
any writer who has given such an interpretation to the 
word. A vacant office is "an office unoccupied,'' "an 
office not filled." So soon as an office is created and as 
long as it exists, it is either vacant or it is full. If it be 
filled, it is not vacant — if it be not filled, it is vacant; 
and it is as manifestly vacant if it never has been filled 
as if the vacancy be created by the death of an incum- 
bent. It is therefore obvious, that, supposing the Presi- 
dent incompetent to fill any vacancy, except such as 
happens in the recess of the Senate, there can be no 
question concerning the manner in which the vacancy 
takes place. The only question is, when did it happen? 
I will state a case, and appeal to the candor of the gentle- 
man for the answer. Suppose an act to be passed during 
the present session creating an office, and the act to take 
effect during the recess, if a defined contingency shall 
happen. The contingency happens, the act begins to 
operate and the office its existence, during the recess. 
Is the office from that moment vacant until it is filled? 
Has the vacancy happened during the recess of the Sen- 
ate? Is it such a vacancy as may be filled by the Presi- 
dent? Sir, there can be but one rational answer. . . . 

But, Mr. President, let us examine the particular case 
which is now made the subject of complaint. In March, 
1813, "during the recess of the Senate," the Emperor 
of Russia offered his mediation for the procurement of 
peace between the United States and Great Britain. It 
was promptly accepted by the President, and Ministers 
were commissioned to meet such as might be appointed 
on the part of England. They proceeded on their peace- 
ful errand to St. Petersburg, and theii: nominations were 



OF FOREIGN RELATIONS 53 

submitted to the Senate at their next meeting thereafter. 
Two of the mission were confirmed and one rejected. 
It is now proposed solemnly to protest against those 
appointments in the recess, "as an act not authorized by 
the constitution, and in the performance of which the 
power of the Senate has been wholly disregarded." Such 
is the history of the case. Sir, there are two descriptions 
of offices altogether different in their nature, authorized 
by the constitution — one to be created by law, and the 
other depending for their existence and continuance upon 
contingencies. Of the first kind, are judicial, revenue, 
and similar offices. Of the second, are Ambassadors, 
other public Ministers, and Consuls. The first descrip- 
tion organize the Government and give it efficacy. They 
form the internal system, and are susceptible of precise 
enumeration. When and how they are created, and when 
and how they become vacant, may always be ascertained 
with perfect precision. Not so with the second descrip- 
tion. They depend for their original existence upon the 
law, but are the offspring of the state of our relations 
with foreign nations, and must necessarily be governed 
by distinct rules. As an independent power, the United 
States have relations with all other independent powers; 
and the management of those relations is vested in the 
Executive. The Ministerial trust confided to our foreign 
Ministers cannot be considered an ''office" in the sense 
and to the extent which are applicable to internal offices 
or offices properly so called. But I will use the word in 
conformity to the resolutions, because I am unwilling 
to enlarge the limits of the present debate, and because 
it will enable me to express my ideas upon the subject 
before us, more intelligibly. I say, then, that whether 
the office of a Minister exists or does not — how and 
when it exists, are questions not particularly and pre- 
cisely settled by the constitution ; but that the Executive 
authority to nominate to the Senate foreign Ministers 
and Consuls, and to fill vacancies happening during the 
recess, necessarily includes the power of determining 
those questions. According to my view of the subject, 
the office commenced with every independent power from 



54 THE PRESIDENT'S CONTROL 

the moment the United States became independent, and 
authorized the appointment of foreign Ministers; and 
it will continue to exist so long as we and they continue 
independent, unless destroyed by the termination of the 
relations which created it. The period at which it should 
be filled is left by the constitution to the discretion of the 
President. Until he chooses to nominate, there is no 
power vested in any department to control him, or to 
appoint. Whether and at what time the office in regard 
to any foreign nation should be filled, may and generally 
will depend on accidental circumstances. Hence Con- 
gress have always appropriated a gross sum for foreign 
intercourse, leaving the President to select the powers . 
with whom we should be represented, unrestrained, ex- 
cept by the amount of the appropriation. As the office 
with reference to any foreign power, is created by, and 
dependent for its continuance upon the relations sub- 
sisting between that power and the United States, its 
existence and destruction must be contemporaneous with 
the existence and destruction of those relations. It dies 
and revives with them. It becomes extinct by war — its 
revival depends on contingencies, and when revived it is 
vacant, until it is filled. If the contingencies happen 
during the recess of the Senate, (of which the President 
is made sole judge by the provision of the constitution 
which has been quoted,) he is authorized to appoint. 
The declaration of war against Great Britain destroyed 
the office in that country, and its revival depended on 
subsequent events. If England had immediately there- 
after, and during the recess of the Senate, proposed to 
treat by Ministers for peace, there can be no question 
that it would have been the constitutional right and the 
duty of the President to commission persons for that 
purpose. The mediation of Russia was proposed during 
the recess. The proposition created a new and neces- 
sarily vacant office, and it belonged to the President to 
determine whether the public interest required that he 
should fill it. I conclude, therefore, that in this case, 
the vacancy did "happen during the recess of the Senate," 
and that the President did not invade the rights of the 



OF FOREIGN RELATIONS 55 

Senate in the exercise of his constitutional and exclusive 
power to "fill up all vacancies which may happen during 
the recess of the Senate, by granting commissions which 
shall expire at the end of their next session."^^ 

It is apparent that the two questions at issue in this 
controversy were : first, as to the meaning of the word 
"happen" in the clause of the Constitution which pro- 
vides for recess appointments; second, as to when the 
office of ambassador or public minister exists, so that 
appointment may be made to it by the appointing 
power. On the first point Senator Gore's position was 
the older one, the one held by Washington. ^^ But the. 
position taken by Senator Bibb is the one that is today 
securely established by numerous opinions of Attor- 
neys-General and by a host of precedents: a vacancy 
happens during the recess of the Senate if, for any 
reason, it happens then to exist.^^ 

As to the second point, Senator Bibb's views reduce 
to these propositions: the office of ambassador or 
public minister exists by the Constitution when the 
international relationship exists which such office is 
calculated to serve; it becomes vacant when an exi- 
gency occurs requiring it to be filled; and of such 
exigency the President is the sole judge. These 
views seem to have prevailed, at least till recent 
years. In the words of Attorney-General Gushing, 

^^ lb., pp. 90-1. See also Letters and Other Writings of James 
Madison (Phila., 1867), III, 350-3, 369-71. 

3^ See Exec. Journals of the Senate, I, pp. 236 and 389 ; II, 
pp. 9 and y6. 

32 I Opinions 631, 2 ih. 525, 3 ih. 67Z, 4 'ib, 523, 7 it. 223, 10 ih. 
357, II Ih. 179, 12 ib. 32, 19 ib. 261. 



56 THE PRESIDENT'S CONTROL 

written in 1855 : "This power to appoint diplomatic 
agents . . . according to his judgment of the public 
service is a constitutional function of the President, 
requiring only the ultimate concurrence of the 
Senate." The designation of the officer is "derived 
from the Law of Nations, and the authority to ap- 
point from the Constitution."^^ 

The second controversy above referred to arose 
when, on December 26, 1825, President Adams sent 
to the Senate the names of three men "to be envoys 
extraordinary and ministers plenipotentiary to the 
Assembly of American Nations at Panama." The 
point raised with reference to these nominations was 
that they were to offices unknown to the Constitution, 
and hence that appointment to them would be an excess 
of the power of the President and Senate. Said Sen- 
ator Benton: 

The Ambassadors and Ministers here intended, [that 
is by the Constitution] are such only as are known to 
the law of nations. Their names, grades, rights, privi- 
leges, and immunities, are perfectly defined in the books 
which treat of them, and were thoroughly understood by 
the framers of our constitution. They are, Ambassadors 
— Envoys — Envoys Extraordinary — Ministers — Ministers 
Plenipotentiary — Ministers Resident. . . . 

Tried by these tests, and the diplomatic qualities of our 
intended Ministers fail at every attribute of the charac- 
ter. Spite of the names which are imposed upon them, 
they turn out to be a sort of Deputies with full powers 
for undefinable objects. They are unknown to the law 
of nations, unknown to our constitution; and the com- 
bined powers of the Federal Government are incompe- 
tent to create them. Nothing less than an original act, 

337 ib. 193-4. 



OF FOREIGN RELATIONS 57 

from the people of the States, in their sovereign capacity, 
is equal to the task. Had these gentlemen been nomi- 
nated to us as DEPUTIES to a CONGRESS, would 
not the nominations have been instantly and unanimously 
rejected? And shall their fate be different under a dif- 
ferent name ? The delicacy of this position was seen and 
felt by the Administration. The terms "Deputy," and 
"Commissioner," were used in the official correspondence 
up to near the date of the nomination, but as these names 
could not pass the Senate, a resort to others became in- 
dispensable. The invitations and acceptance were in 
express terms, for ''Deputies and Representatives to a 
CONGRESS." The nominations to the Senate are 
wholly different.^* 

Senator Benton's views did not prevail, as the nomi- 
nations were eventually ratified. The established view 
is clearly that the term "ambassadors and other public 
ministers," which occurs three times in the Constitu- 
tion, comprehends "all officers having diplomatic func- 
tions, whatever their title or designation." As 
Attorney-General Gushing put the matter in the opin- 
ion already cited: 

The modern law of nations recognises a class of public 
officers, who, while bearing various designations, which 
are chiefly significant, in the relation of rank, precedence, 
or dignity, possesses in substance the same functions, 
rights, and privileges, being agents of their respective 
governments for the transaction of its diplomatic busi- 
ness abroad, possessing such powers as their respective 
governments may please to confer, and enjoying, as a 
class, established legal rights and immunities of person 
and property in the governments to which they are ac- 
credited as the representatives of sovereign powers. . . . 

With diplomatic agents thus existing as a class, of 
recognised legal rights, but of irregular and vague di- 

34 Benton, VIII, pp. 463-4- 



58 THE PRESIDENT'S CONTROL 

versities of title and of power, the Constitution of the 
United States intervenes to lay the foundation of their 
appointment under this Government, in these words : ^ 

"The President . . . shall have power, by and with 
the advice and consent of the Senate," &c.^^ 

The third controversy above referred to arose in 
183 1 in consequence of the failure of President Jack- 
son to send to the Senate for confirmation the names 
of three men whom he had dispatched some months 
before on a special mission to Turkey. Said Senator 
Tazewell of Virginia, who led the attack on the Presi- 
dent's course: 

I beg the Senate to bear in mind that this authority 
was not conferred upon these persons by any private 
letter or warrant written by a Secretary, and intended 
for their own guidance and governance merely ; but that 
it purports to be granted by the Chief Magistrate him- 
self, is communicated to them by letters patent, under 
his own signature, authenticated by the great seal of the 
United States, addressed to all whom they might con- 
cern, designed to be exhibited to the inspection of a 
foreign sovereign, and to be exchanged against similar 
powers to be granted by him to others who might equally 
possess his confidence. To whomsoever this seal was 
shown, it proved itself. When recognized by any sov- 
ereign, it entitled those who bore the commission it 
authenticated, to all the rights, privileges, and immunities 
accorded to the ministers of any potentate on earth ; and 
authorized them to pledge the faith and honor of this 
nation to the performance of any act within the scope 
of the full power it purported to bestow. This is the 
character of the commission granted by the President 
upon the present occasion, a copy of which is now upon 
our files.^* 

3^7 Opinions 190, 192-3. 
3« Benton, XI, p. 197. 



OF FOREIGN RELATIONS 59 

The Senator then propounded two questions; first: 

Did the President possess any authority to institute 
such an original mission during the recess, and without 
the advice and consent of the Senate? And if he did, 
was it not his bounden duty to have nominated to the 
Senate at their next session the persons he had so ap- 
pointed during the recess?^'' 

On the second question he proceeded thus : 

Mr. President, whatever may be the opinion of some 
as to the inherent powers supposed to be enjoyed by this 
body, or some other departments of this Government, 
I think we must all agree that the Executive has no such 
inherent or undefined authority. All his powers must 
be derived under some express grant contained in the 
constitution. Inherent power in him would be but a 
courtly term to denote prerogative; and the exercise of 
any ungranted authority by him is nothing else than mere 
usurpation. Let us then turn to the charter, and see if 
that contains the concession of any such power as has 
been here exerted. 

It is true that the first section of the second article of 
the Constitution vests in the President "the Executive 
power" ; and equally true that the power which has been 
exercised upon this occasion, is properly an Executive 
power. Therefore, if there was no other provision in 
the constitution upon the subject than this, no doubt 
would exist that the President was authorized to do that 
which he has done. But the constitution does not stop 
here. Very soon after this general grant of the Execu- 
tive power, and in the next section of the same article 
which contains the grant, the constitution proceeds to 
check and restrain the power so granted, by prescribing 
the manner in which alone the President must exercise 
it. Thus, in the second paragraph of the second section 
of this same second article, it declares that "he shall 
have power, by and with the advice of the Senate, to 

87/6. 



6o THE PRESIDENT'S CONTROL 

make treaties, provided two-thirds of the Senators pres- 
ent concur" ; and then, that "he shall nominate, and, by 
and with the advice and consent of the Senate, shall ap- 
point, ambassadors, other public ministers and consuls, 
judges of the Supreme Court; and all other officers of 
the United States, whose appointments are not herein 
otherwise provided for, and which shall be established 
by law." Hence, it is obvious, that, although the Execu- 
tive power is vested in the President alone, he is expressly 
inhibited from making treaties, (if indeed that is an 
Executive power,) or appointment to any office of the 
United States, (which certainly is such,) without the 
advice and consent of the Senate. But the officers in 
question never have been nominated to the Senate, nor 
has this body advised or consented to their appointment 
in any way; therefore, the act of the President in con- 
ferring these appointments without the concurrence of 
the Senate can derive no sanction or support from this 
part of the constitution.^^ 

Later, however, the Senator made the following im- 
portant admission: 

Let me not be misunderstood. I do not mean to doubt 
the power of the President to appoint secret agents when 
and how he pleases ; nor do I mean to advance any claim 
on the part of the Senate to participate in the exercise 
of any such power. As a simple individual, I would 
humbly suggest to him, if I might be permitted so to do, 
that whenever he stands in need of secret agents who are 
really designed to be such, he had better abstain from 
putting his own name to the warrant given to them, and 
never permit it to be authenticated by the great seal. 
Such a proceeding may sometimes prove hazardous, and 
I think would not be very creditable to the nation whose 
seal it is. But as a Senator, I do claim for the Senate, 
in the language of the constitution, the right of advising 
and consenting to the appointment of any and every 
officer of the United States, no matter what may be his 

38/6., pp. 198-8. 



OF FOREIGN RELATIONS 6i 

name, what his duties, or how he may be instructed to 
perform them. And it is only because secret agents are 
not officers of the United States, but the mere agents of 
the President, or of his Secretaries, or of his miUtary 
or naval commanders, that I disclaim all participation 
p their appointment.^® 

This admission was held to furnish adequate ground 
for the justification of the President. The error of 
those who attack the Turkish mission, said Livingston, 
consists in giving to those commissioners the appellation 
of public Ministers, and thus bringing them within the 
proviso of the constitution, which directs that such offi- 
cers shall be appointed with the advice and consent of 
the Senate.*** 

He then continued: 

The distinction that was made by the Senator from 
Illinois, and supported by a reference to high authority 
on the law of nations, did not make upon the gentleman 
from Virginia the impression it seemed to do upon the 
rest of the Senate. It is a well founded distinction, that 
which he thus urged, between a public Minister and a 
secret agent. It seems to be thought that the nature and 
style of the mission is to be determined by the manner 
in which the powers are authenticated — not by the char- 
acter given in those powers. Sir, there are grades in 
diplomacy which give different ranks and privileges — 
from an ambassador to a secret agent. The lowest of 
these may have, for the purpose of binding the party 
he represents, the same powers that are usually vested 
in the highest. . . . 

Ambassadors and other public Ministers are directed 
to be appointed by the President, by and with the advice 
and consent of the Senate; because public missions re- 

S9/&., p. 207. 
*°/ib., p. 220. 



62 THE PRESIDENT'S CONTROL 

quired no secrecy, although their instructions might. But 
the framers of the constitution knew the necessity of 
missions, of which not only the object but the existence 
should be kept secret. They therefore wisely made the 
co-operation of the Senate ultimately necessary in the 
first instance, but left the appointment solely to the Presi- 
dent in the last. ... 

The practice of appointing secret agents is coeval with 
our existence as a nation, and goes beyond our acknowl- 
edgement as such by other powers. All those great men 
who have figured in the history of our diplomacy, began 
their career, and performed some of their most important 
services in the capacity of secret agents, with full powers. 
Franklin, Adams, Lee, were only commissioners; and in 
negotiating a treaty with the Emperor of Morocco, the 
selection of the secret agent was left to the Ministers 
appointed to make the treaty: and, accordingly, in the 
year 1785, Mr. Adams and Mr. Jefferson appointed 
Thomas Barclay, who went to Morocco and made a 
treaty, which was ratified by the Ministers at Paris. 

These instances show that, even prior to the establish- 
ment of the Federal Government, secret plenipotentiaries 
were known, as well in the practice of our own country 
as in the general law of nations: and that these secret 
agents were not on a level with messengers, letter-car- 
riers, or spies, to whom it has been found necessary in 
argument to assimilate them. On the 30th March, 1795, 
in the recess of the Senate, by letters patent under the 
great broad seal of the United States, and the signature 
of their President, (that President being George Wash- 
ington,) countersigned by the Secretary of State, David 
Humphreys was appointed commissioner plenipotentiary 
for negotiating a treaty of peace with Algiers. By in- 
structions from the President, he was afterwards author- 
ized to employ Joseph Donaldson as agent in that business. 
In May, of the same year, he did appoint Donaldson, 
who went to Algiers, and in September of the same year 
concluded a treaty with the Dey and Divan, which was 
confirmed by Humphreys, at Lisbon, on the 28th Novem- 
ber in the same year, and afterwards ratified by the 



OF FOREIGN RELATIONS 63 

Senate on the day of , 1796, and an act passed 

both Houses on 6th May, 1796, appropriating a large 
sum, twenty-five thousand dollars annually, for carrying 
it into effect. 

I call the attention of the Senate to all the facts of 
this case, with the previous remark, that the construction 
which it gives to the constitution was made in the earliest 
years of the Federal Government, by the man who pre- 
sided in the convention which made that constitution, 
acting with the advice and assistance of the leading mem- 
bers of that body, all fresh from its discussion ; men who 
had taken prominent parts in every question that arose. 
That in the Senate which ratified it, and in the House 
of Representatives which carried it into execution, were 
several members, not only of the convention when it was 
formed, but of the State assemblies where it was dis- 
cussed, analyzed, every hidden defect brought to light; 
every possible inconvenience predicted; every construc- 
tion given that ingenuity, sharpened by opposition and 
party feeling, could conceive; where amendments were 
proposed, to remedy apprehended evil; where it was ex- 
amined, article by article, phrase by phrase, not a word, 
not a syllable, escaping their inquisitorial scrutiny. Yet, 
by those men, with this perfect and recent knowledge of 
the constitution, acting under the solemn obligation to 
preserve it inviolate, and without any possible motive to 
make them forget their duty, was this first precedent 
set ; without a single doubt on the mind that it was cor- 
rect ; without protest, without even remark. A precedent 
going the full length of that which is now unhesitatingly 
called a lawless, unconstitutional usurpation ; bearing the 
present act out in all its parts, and in some points going 
much beyond it.*^ 

The precedent afforded by Humphreys's appoint- 
ment without reference to the Senate has since been 
multiplied many times. Notable instances of the same 
sort were the mission of A. Dudley Mann to Hanover 

417&., pp. 221-2. 



64 THE PRESIDENT'S CONTROL 

and other German states in 1846, of the same gentle- 
man to Hungary in 1849, of Nicholas Trist to Mexico 
in 1848, of Commodore Perry to Japan in 1852, of 
J. H. Blount to Hawaii in 1893.*^ The last named 
case is the extremest of all. Blount, who was ap- 
pointed while the Senate was in session, was given 
"paramount authority" over the American resident 
minister at Hawaii and was further empowered to 
employ the military and naval forces of the United 
States, if necessary to protect American lives and in- 
terests. His mission raised a vigorous storm of pro- 
test in the Senate, but the majority report of the 
committee which was created to investigate the con- 
stitutional question vindicated the President in the 
following terms: 

A question has been made as to the right of the Presi- 
dent of the United States to dispatch Mr. Blount to 
Hawaii as his personal representative for the purpose 
of seeking the further information which the President 
believed was necessary in order to arrive at a just con- 
clusion regarding the state of affairs in Hawaii. Many 
precedents could be quoted to show that such power has 
been exercised by the President on various occasions, 
without dissent on the part of Congress. These prece- 
dents also show that the Senate of the United States, 
though in session, need not be consulted as to the ap- 
pointment of such agents.*^ 

More recently. President Wilson's fondness for 
sending agents abroad without consulting the Senate 
as to their appointment has provoked criticism, but, it 

^^Sen. Misc. Doc. 109, 50 Cong., i Sess. 
43 See Record, 53 Cong., 2 Sess., pp. 127, 132, 196-7, 199, 205, 
431-2. 



OF FOREIGN RELATIONS 65 

would appear, without good reason from the point 
of view of precedent. At the same time, it is difficult 
to harmonize the practice, considering the dimensions 
it has today attained, with a reasonable construction 
of the Constitution. Such agents have been justified 
as "secret agents," yet neither their existence nor their 
mission is invariably secret. They have been called 
"private agents of the President," his "personal repre- 
sentatives," yet they have been sometimes commis- 
sioned under the great seal. They have been justified 
as organs of negotiation and so as springing from the 
Executive's power in negotiating treaties, yet this is 
also a normal function of our regular representatives. 
They have been considered as agents appointed for 
special occasions, but, as we have seen, the term "pub- 
lic ministers" of the Constitution is broad enough to 
include all categories of diplomatic agents. Theoret- 
ically, perhaps, they could not claim full diplomatic 
privileges abroad, yet practically, if their identity were 
known, they would probably be accorded them. 

In short, the only test which is generally available 
for distinguishing this kind of agents from the other 
kind is to be found in the method of their appointment 
and in the fact that they are usually paid out of the 
"contingent fund."** In no other way has the notion 

**See generally John W. Foster, The Practice of Diplomacy, 
ch. X. — A question somewhat related to the one just under dis- 
cussion arises under Art. I, Sec. 6, Par. 2, of the Constitution, 
which provides that "no Senator or Representative shall ... be 
appointed to any civil office under the authority of the United 
States, which shall have been created" during his term; and no 
officer of the United States "shall be a member of either house 



66 THE PRESIDENT'S CONTROL 

of the President's prerogative in the field of foreign 
relations asserted itself more strikingly. 

But "the balance of the Constitution" has a way of 
asserting itself, and in another respect the President 
has apparently lost authority touching diplomatic ap- 
pointments. I refer to such legislation as that repre- 
sented by the Acts of March 3, 1893, ^^^ ^^ March 2, 
1909, the former of which purported to "authorize" 
the President to appoint "ambassadors" in certain 
cases, and the latter of which, in repealing the earlier 
act, ordains in effect that new ambassadorships may 
be created only with the consent of Congress.*^ The 
question is: What effect may validly be given such 
legislation ? 

During the first sixty-five years of the Government 
Congress passed no act purporting to create any diplo- 
matic rank, the entire question of grades being left 



during his continuance in office." Notwithstanding this pro- 
vision, the President has frequently appointed members of the 
houses as commissioners to negotiate treaties and agreements 
with foreign governments. The Treaty of Peace with Spain, 
the treaty to settle the Behring Sea controversy, the treaty 
establishing the boundary line between Canada and Alaska, were 
negotiated by commissions containing Senators and Representa- 
tives. See the late Senator Hoar's Autobiography, II, 48-51, 
where a protest is registered against this practice. Such ap- 
pointments, however, usually lack the prime tests of "office," 
as these are laid down by the Court: "tenure, duration, emolu- 
ment and duties." They are "transient, occasional, incidental." 
See Willoughby's Constitution, I, 528-9; also U. S. v. Hartwell, 
6 Wallace 385. Perhaps it may be held on this basis that 
"special agents," of the sort discussed in the text, are not only 
not "public ministers," but that they are not "officers" at all. 
45 See 27 Stat. L. 497, and 32 ib. 672. 



OF FOREIGN RELATIONS dy 

with the President. Indeed, during the administra- 
tions of Washington, Adams and Jefferson, and the 
first term of Madison, no mention occurs in any ap- 
propriation act even, of ministers of a specified rank 
at this or that place, but the provision for the diplo- 
matic corps consisted of so much money "for the ex- 
penses of foreign intercourse," to be expended at the 
discretion of the President. In Madison's second term 
the practice was introduced of allocating special sums 
to the several foreign missions maintained by the Gov- 
ernment, but even then the legislative provisions did 
not purport to curtail the discretion of the President 
in any way in the choice of diplomatic agents, and 
far less did they raise any implication of a claim of 
power by Congress to create offices to which, by the 
terms of the Constitution, he may nominate and, with 
the advice and consent of the Senate, appoint "am- 
bassadors and other public ministers."*^ 

The earliest and the principal precedent for the Acts 
of 1893 ^^<i 1909^ referred to above, is the Act of 
March i, 1855. This act provided in its opening sec- 
tion that "from and after the 30th day of June, next, 
the President of the United States shall, by and with 
the advice and consent of the Senate, appoint repre- 
sentatives of the grade of envoys extraordinary and 
ministers plenipotentiary," with a specified annual 
compensation for each, "to the following countries," 
&c. In the body of the act was also this provision: 
"The President shall appoint no other than citizens of 
the United States, who are residents thereof, or abroad 

^^ See 7 Opinions of Attorneys-General, 186 ff. 



y 



68 THE PRESIDENT'S CONTROL 

in the employment of the Government at the time of 
their appointment."*^ 

The question of the interpretation of the act having 
been referred to the Attorney-General, he held that 
the provisions quoted, and all like provisions in the 
act, "must be deemed directory or recommendatory 
only, and not mandatory." For, he continued, with 
special reference to the provision about the appoint- 
ment of citizens: 

The limit of the range of selection for the appointment 
of constitutional officers depends on the Constitution. 
Congress may refuse to make appropriations to pay a 
person unless appointed from this or that category; but 
the President may, in my judgment, employ him, if the 
public interest requires it, whether he be a citizen or not, 
and whether or not at the time of the appointment he 
be actually within the United States. 

And similarly as to the word "shall" in the opening 
section of the act — this, the Attorney-General held, 
^ y'must be construed to signify "may" : 

For Congress cannot by law constitutionally require 
the President to make removals or appointments of public 
ministers on a given day, or to make such appointments 
of prescribed rank, or to make or not make them at this 
or that place. He, with the advice of the Senate, enters 
into treaties ; he, with the advice of the Senate, appoints 
ambassadors and other public ministers. It is a constitu- 
tional power to appoint to a constitutional office, not a 
statute power nor a statute office. Like the power to 
pardon, it is not limitable by Congress; which can as 
well say that the President shall pardon all offences of 
a certain denomination and no others, as to say that he 
shall appoint "public ministers" of the grade of "envoy 

*7 lb., pp. 214-5. 



/ 



OF FOREIGN RELATIONS 69 

extraordinary" and no others. He may, with the advice 
of the Senate, appoint an ambassador, a commissioner 
plenipotentiary, a minister resident, a charge d'affaires, 
a special agent, a secretary of emlDassy, a secretary of 
minister plenipotentiary, notwithstanding the language of 
this act, just as, in past times, he appointed a minister 
resident, a charge d'affaires, a commissioner plenipoten- 
tiary, without, nay, in seeming contradiction with, author- 
izing provisions of acts of Congress. And, as we are 
not by construction to assume that a legislative act in- 
tends any unconstitutional thing when its words can be 
so construed as to mean a constitutional thing, we are 
therefore not to read this act as requiring the President 
to appoint and maintain a minister of the rank of envoy 
extraordinary at the courts of London, Paris, St. Peters- 
burg, Madrid, Mexico, Copenhagen, regardless of what 
may, in his judgment and that of the Senate, be the 
necessities or interests of the public service; nor to read 
it as forbidding him to have either of those legations, 
or any other, in the hands of a mere charge d'affaires. 

The total effect of the act, the Attorney-General 
concluded, was simply this: It was 

to say, that if, and whenever, the President shall, by and 
with the advice and consent of the Senate, appoint an 
envoy extraordinary and minister plenipotentiary to 
Great Britain, or to Sweden, the compensation of that 
minister shall be so much and no more. It could not 
constitutionally say, and does not pretend to say, that if, 
under any contingencies of political relation, it should 
become not possible, not honorable, not expedient for 
the United States to have such a minister of the highest 
rank in Great Britain or in Sweden, and still the public 
honor and interests required the legation to be main- 
tained, that it might not be done by means of a minister 
of secondary rank, a minister resident, a charge d'affaires, 
or even an agent without title. It does not pretend to 
say that the President must, contrary to the judgment 
of himself and of the Senate, appoint a minister of the 
highest rank at every court of Europe or America. 



70 THE PRESIDENT'S CONTROL 

In regard to all the possible varieties of diplomatic 
functionaries of the Government, the act leaves them 
where they stood before, in respect to their relation to 
the appointing power of the President.*^ 

If this reasoning is convincing, then a like operation 
should be given to the Act of 1909; that is to say, it 
should be regarded merely as a notification from the 
Congress which passed it that it would appropriate 
no money for the salaries of new ambassadorships, 
a notification which succeeding Congresses would 
naturally be under no obligation to heed, since Con- 
gress can limit its own discretion as little as it can 
the President's. Moreover, the same reasoning would 
apply to consuls, for they are officers created by the 
Constitution and the Law of Nations. On the other 
hand, the duties of consular agents are derived only 
in small part from the Law of Nations; in much 
greater part they spring from treaties, while Con- 
gress, by virtue of its powers to regulate commerce, 
may also cast certain duties upon them. Also, it has 
been held, the lower grades of consular agents are 
"inferior officers," whose appointment may be vested 
in the President alone.*® 

^^ lb,, pp. 215-20, passim. 

*^7 Opins. 242 ff., also by Attorney-General Gushing. In 
U. S. V. Eaton, 169 U. S. 343, it was held that statutory pro- 
visions as to bonds of consuls are "directory," not "mandatory," 
— a result in harmony with Gushing's reasoning. The same case 
also sustains the proposition that vice-consuls are "inferior offi- 
cers." The Act of August 18, 1866 (11 Stat. L. 139) required 
consuls and commercial agents to collect commercial informa- 
tion, etc. The Act of April 5, 1906 (34 Stat. L. 99) reorganizes 
the consular system. The Act of February 5, 1915 (38 Stat. L. 



OF FOREIGN RELATIONS 71 

5 — In consequence of his power to receive and dis- 
patch diplomatic agents the President has the power 
to recognize new states, communities claiming the 
status of belligerency, and changes of government in 
established states. In consequence of its participation 
in the appointment of ambassadors and public minis- 
ters the Senate frequently shares this power of 
recognition. 

These propositions are secure enough; but the ques- 
tion remains whether Congress enjoys an independent 
power of recognition. The precedents in the matter 
are succinctly summarized by John Bassett Moore in 
his ''Digest," thus: 

In the preceding review [lb., I, pp. 67-243] of the 
recognition, respectively, of new states, new govern- 
ments, and belligerency, there has been made in each 

805) requires that all appointments of secretaries in the diplo- 
matic service and of consuls-general and consuls shall be by 
commission to the officers, and not by commission to a particular 
post; and that the officers shall be subject to assignment to 
posts and transferred from one post to another by order of 
the President as the interests of the service may require. Some 
recent acts touching grades of diplomatic agents are the fol- 
lowing: the Act of December 6, 1913, "authorizing" the Presi- 
dent to appoint envoys extraordinary and ministers plenipo- 
tentiary to Paraguay and Uruguay; the Act of September 4, 
1913, "authorizing" the President to appoint an ambassador to 
Spain, w^ith salary at 17,500 dollars per annum; the Act of May 
16, 1914, "authorizing" ambassadors to Argentina and Chile, 
with like salary. As this volume was going to press, the Root 
Mission was leaving for Petrograd (May, 1917). I am informed 
that Mr. Root bore "the rank of ambassador" and some of his 
associates "the rank of envoy extraordinary," and that their 
names were not referred to the Senate. Neither was the mission 
authorized by an act of Congress. 



72 THE PRESIDENTS CONTROL 

case, a precise statement of facts, showing how and by 
whom the recognition was accorded. In every case, as 
it appears, of a new government and of belligerency, the 
question of recognition was determined solely by the 
Executive. In the case of the Spanish-American re- 
publics, of Texas, of Hayti, and of Liberia, the Presi- 
dent, before recognizing the new state, invoked the 
judgment and cooperation of Congress; and in each of 
these cases provision was made for the appointment of 
a minister, which, when made in due form, constitutes, 
as has been seen, according to the rules of international 
law, a formal recognition. In numerous other cases, the 
recognition was given by the Executive solely on his own 
responsibility.^*' 

But this statement still leaves open the question just 
put, whether Congress has a concurrent power of 
recognition. "The question of the power to recog- 
nize," Moore continues, "has been specifically dis- 
cussed on various occasions." He then cites a passage 
from John Quincy Adams's "Memoirs," recording a 
discussion which took place in Monroe's Cabinet on 
January i, 1819, with reference to a draft instruction 
by Adams, then Secretary of State, to the American 
minister at the Court of St. James's announcing the 
President's immediate intention of recognizing the 
government of Buenos Ayres: 

A question arose as to the form of recognition. Mr. 
Crawford said that if an acknowledgment was to take 
place he should prefer to make it, not by granting an 
exequatur to a consul, but by sending a minister there, 
because the Senate must then act upon the nomination, 
which would give their sanction to the measure. Mr. 
Wirt added that the House of Representatives must also 
concur by assenting to an act of appropriation. The 



60 



Op. cit, I, pp. 243-4. 



OF FOREIGN RELATIONS ^^^ 

President, laughing, said that as those bodies had the 
power of impeachment it would be convenient to have 
them thus pledged beforehand. Mr. Adams observed 
that his ''impressions were altogether different. I 
thought it not consistent with our national dignity," said 
Mr. Adams, *'to be the first in sending a minister to a 
new power. It had not been done by any European 
power to ourselves. ... As to impeachment, I was will- 
ing to take my share of risk of it for this measure when- 
ever the Executive should deem it proper. And, instead 
of admitting the Senate or House of Representatives to 
any share in the act of recognition, I would expressly 
avoid that form of doing it which would require the 
concurrence of those bodies. It was, I had no doubt, 
by our Constitution an act of the Executive authority. 
General Washington had exercised it in recognizing the 
French Republic by the reception of Mr. Genest. Mr. 
Madison had exercised it by declining several years to 
receive, and by finally receiving, Mr. Onis; and in this 
instance I thought the Executive ought carefully to pre- 
serve entire the authority given him by the Constitution, 
and not weaken it by setting the precedent of making 
either House of Congress a party to an act which it was 
his exclusive right and duty to perform. 

"Mr. Crawford said he did not think there was any- 
thing in the objection to sending a minister on the score 
of national dignity, and that there was a difference be- 
tween the recognition of a change of government in a 
nation already acknowledged as sovereign, and the recog- 
nition of a new nation itself. He did not, however, deny, 
but admitted, that the recognition was strictly within the 
powers of the Executive alone, and I did not press the 
discussion further."^^ 

Somewhat earlier there had been a debate on the 
same subject in the House, occasioned by the effort of 
Clay, on March 24, 181 8, to secure an appropriation 
of $18,000 to provide the outfit and salary of a min- 

^^Ih., citing Adams's Memoirs, IV, pp. 205-6. 



74 THE PRESIDENT'S CONTROL 

ister from the United States to the ''independent 
provinces of the River Plata in South America." 
Significantly, Clay had hardly offered his measure 
when he changed it to the following form : 

For one year's salary, and an outfit to a Minister to 
the United Provinces of the Rio de La Plata, the salary 
to commence, and the outfit to be paid, whenever the 
President shall deem it expedient to send a Minister to 
the said United Provinces, a sum not exceeding eighteen 
thousand doUars.^^ 

In this form, he contended, the House might ex- 
press its sentiments "without unconstitutional inter- 
ference with the Executive." 

Nevertheless, the measure was attacked as "an act 
of usurpation, an invasion of executive authority." 
"The Constitution," said Smyth of Virginia, who 
among others advanced this position, 

grants to the President, by and with the consent of the 
Senate, power to appoint Ambassadors and public Minis- 
ters, and to make treaties. According to the usage of the 
Government, it is the President who receives all foreign 
Ministers, and determines what foreign Ministers shall 
or shall not be received. It is by the exercise of some 
one of these powers, in neither of which has this House 
any participation, that a foreign power must be acknowl- 
edged. Then the acknowledgment of the independence 
of a new power is an exercise of Executive authority; 
consequently, for Congress to direct the Executive how 
he shall exercise this power, is an act of usurpation.^^ 

The ablest defence of the measure was made by 
Tucker of the same State, who on the constitutional 
question spoke as follows: 

"Benton, VI, p. 145. 
^^Ib., p. 162. 



OF FOREIGN RELATIONS 75 

But, gentlemen seem to consider this an interference 
with the constitutional powers of the Executive. I do 
not think so. This House has at all times, and on all 
subjects, a right to declare its opinions, leaving it to the 
Executive to act upon them or not, according to its 
pleasure. Nay, it has often done more. Wherever the 
act to be done by the Executive has been intimately con- 
nected with the constitutional powers of this body, it has 
always deemed itself competent to act. Thus, before 
the treaty for the purchase of Louisiana was made, 
$2,000,000 were put at the disposal of the Government 
for a purchase of Southern territory. Here there was 
an act perfectly analogous. This body had no right to 
make a purchase, or to command the President to do so ; 
but, as the purchase, if made, would have called upon 
the legislative body for an appropriation, it was thought 
advisable to make it beforehand, and thus indicate a 
correspondence of views on the subject, where corre- 
spondence was necessary. Could it have been said at 
this time, that the Executive were censured by Congress 
for delaying to make a purchase the interest of the na- 
tion called for? Could it then have been objected that 
we were trenching upon the constitutional powers of the 
Executive ? Could it have been alleged to be useless and 
frivolous, because the Executive could make the pur- 
chase without a law? If not, neither can it be said now. 
The act of the Executive there would only have called 
for a small appropriation. The act of this Executive 
here might have the effect of a declaration of war, which 
it is within the constitutional powers of the legislative 
body alone to make. It would appear to me indeed of 
the utmost importance, that this correspondence of views 
should be preserved between these two branches of the 
Government. How embarrassing to the Executive must 
it be, if, after a treaty has been made calling for a large 
appropriation, this body should refuse to make it, and 
to sanction a contract entered into with a foreign State. 
How much more embarrassing if, in the exercise of its 
constitutional powers, the Executive should involve the 
nation in a war against the wishes of its Representatives. 



76 THE PRESIDENT'S CONTROL 

The jarring and confusion and inefficiency that would 
result, might have the most fatal influence on the na- 
tional' success. No, sir, frankness and candor, and a 
free and unreserved communication of the feelings and 
opinions of each by the other, can never have any other 
than the happiest influence upon the National Councils.^* 

Thus Tucker, v^ho was the best authority in the 
House on such questions, did not claim for Congress 
a povi^er to recognize new states, but based his whole 
argument upon the desirability of cooperation between 
the Executive and the legislature in the exercise of 
their respective powers. The only speaker who seems 
to have made such a claim on this occasion was Clay 
himself, in the following terms : 

There are three modes under our Constitution in which 
a nation may be recognized : By the Executive receiving 
a minister; secondly, by its sending one thither; and, 
thirdly, this House unquestionably has the right to recog- 
nize in the exercise of the constitutional power of Con- 
gress to regulate foreign commerce. To receive a 
minister from a foreign power is an admission that the 
party sending him is sovereign and independent. So 
the sending a minister, as ministers are never sent but 
to sovereign powers, is a recognition of the independence 
of the power to whom the minister is sent. . . . This 
House, Mr. C. said, had the incontestable right to recog- 
nize a foreign nation in the exercise of its power to 
regulate commerce with foreign nations. Suppose, for 
example, we passed an act to regulate trade between the 
United States and Buenos Ayres; the existence of the 
nation would be thereby recognized, as we could not 
regulate trade with a nation which does not exist.^^ 

Clay's measure was defeated by a vote of 45 to 115. 

64/&., p. 168. 

^^ Sen. Doc. 56, p. 32. See also ib., pp. ^3-7. 



OF FOREIGN RELATIONS "j^ 

Yet four years later Congress passed an appropriation 
of $100,000 for "such missions to the independent 
nations of the American continent as the President 
of the United States may deem proper." This may 
seem to be a claim of power on the part of Congress 
itself. But, as has already been stated, Congress was 
acting on this occasion on the invitation of the 
President. 

And so again Congress acted in connection with the 
recognition of Texas in 1836. In his message of De- 
cember 21 of that year, President Jackson said: 

No steps have been taken by the Executive toward the 
acknowledgment of the independence of Texas, and the 
whole subject would have been left without further re- 
mark on the information now given to Congress were it 
not that the two Houses at their last session, acting sep- 
arately, passed resolutions "that the independence of 
Texas ought to be acknowledged by the United States 
whenever satisfactory information should be received that 
it had in successful operation a civil government capable 
of performing the duties and fulfilling the obligations of 
an independent power." This mark of interest in the 
question of the independence of Texas and indication of 
the views of Congress make it proper that I should some- 
what in detail present the considerations that have gov- 
erned the Executive in continuing to occupy the ground 
previously taken in the contest between Mexico and 
Texas. . . . 

In the preamble to the resolutions of the House of 
Representatives it is distinctly intimated that the ex- 
pediency of recognizing the independence of Texas should 
be left to the decision of Congress. In this view, on the 
ground of expediency, I am disposed to concur, and do 
not, therefore, consider it necessary to express any opin- 
ion as to the strict constitutional right of the Executive, 
either apart from or in conjunction with the Senate, over 



78 THE PRESIDENT'S CONTROL 

the subject. It is to be presumed that on no future 
occasion will a dispute arise, as none has heretofore oc- 
curred, between the Executive and Legislature in the 
exercise of the power of recognition. It will always be 
considered consistent with the spirit of the Constitution, 
and most safe, that it should be exercised, when probably 
leading to war, with a previous understanding with that 
body by whom war can alone be declared, and by whom 
all the provisions for sustaining its perils must be fur- 
nished. Its submission to Congress, which represents in 
one of its branches the States of this Union and in the 
other the people of the United States, where there may 
be reasonable ground to apprehend so grave a conse- 
quence, would certainly afford the fullest satisfaction to 
our own country and a perfect guaranty to all other na- 
tions of the justice and prudence of the measures which 
might be adopted.^^ 

On the following February 27 a motion was made 
in the House to amend the Civil and Diplomatic Ap- 
propriations bill by inserting the following provision : 

For an outfit and salary of a diplomatic agent to be 
sent to the independent republic of Texas thou- 
sand dollars. ^^ 

Speaking for this amendment, John Quincy Adams 
offered the objection, 

that the act of recognition of a foreign power had here- 
tofore always been an executive act of this Government. 
It was the business and duty of the President of the 
United States, and he [Mr. A.] was not willing to se 
the example of giving that recognition on the part of 
the legislative body without recommendation of the 
Executive.^^ 

^6 Richardson, Messages and Papers of the Presidents (cited 
hereafter as "Richardson"), III, pp. 266-7. 
^'^ Sen. Doc. 56, p. 43. 



OF FOREIGN RELATIONS 79 

Eventually the word "independent" was stricken out 
of the amendment and the following clause was added : 

Whenever the President of the United States shall 
receive satisfactory evidence that Texas is an independ- 
ent Power, and that it is expedient to appoint such a 
minister. ^^ 

The question of Congress's right to recognize new 
states was prominently raised in more recent years 
in connection with Cuba's final and successful struggle 
for independence. Beset by numerous legislative pro- 
posals of a more or less mandatory character, urging 
recognition upon the President, the Senate Foreign 
Relations Committee, in 1897, i^iade an elaborate in- 
vestigation of the whole subject and came to the fol- 
lowing conclusions as to this power: 

The "recognition" of independence or belligerency of 
a foreign power, technically speaking, is distinctly a 
diplomatic matter. It is properly evidenced either by 
sending a public minister to the Government thus recog- 
nized, or by receiving a public minister therefrom. The 
latter is the usual and proper course. Diplomatic rela- 
tions with a new power are properly, and customarily 
inaugurated at the request of that power, expressed 
through an envoy sent for the purpose. The reception 
of this envoy, as pointed out, is the act of the President 
alone. The next step, that of sending a public minister 
to the nation thus recognized, is primarily the act of the 
President. The Senate can take no part in it at all, until 
the President has sent in a nomination. Then it acts 
in its executive capacity, and, customarily, in "executive 
session." The legislative branch of the Government can 
exercise no influence over this step except, very indi- 
rectly, by withholding appropriations. . . . 

Nor can the legislative branch of the Government hold 

59 /ft. 



8o THE PRESIDENT'S CONTROL 

any communications with foreign powers. The executive 
branch is the sole mouthpiece of the nation in communi- 
cation with foreign sovereignties. Foreign nations com- 
municate only through their respective executive depart- 
ments. Resolutions of their legislative departments upon 
diplomatic matters have no status in international law. 
In the department of international law, therefore, prop- 
erly speaking, a Congressional recognition of belligerency 
or independence would be a nullity. ... 

Congress can help the Cuban insurgents by legislation 
in many ways, but it cannot help them legitimately by 
mere declarations, or by attempts to engage in diplomatic 
negotiations, if our interpretation of the Constitution is 
correct. That it is correct . . . [is] shown by the opin- 
ions of jurists and statesmen of the past.*^^ 

Notwithstanding the flavor of finality which at- 
taches to this statement, when a few months later 
President McKinley proposed intervention in Cuba, 
the whole question was reopened. The President, it 
appears, was opposed to recognizing the Cuban insur- 
gent government, and a strong majority of the For- 
eign Relations Committee was in agreement with him 
on this point. A minority of the committee, on the 
contrary, favored ''the immediate recognition of the 
Republic of Cuba ... as a free, independent, and 
sovereign power." This view finally prevailed, for 
the opening resolution of the measure which empow- 
ered the President to employ the land and naval forces 
of the United States to expel Spain from Cuba de- 
clared that the people of that island "are and of right 
ought to be free and independent.'* 

However, I think it extremely doubtful whether this 
declaration, considered in the light of the discussion 

^^ Ih, pp. 20-22. 



OF FOREIGN RELATIONS 8i 

which attended its adoption, is to be regarded as a 
claim by Congress to the power of recognition. It 
is true that Senator Spooner of Wisconsin attacked 
the declaration as a usurpation of *'an executive func- 
tion" and as an attempt "to make a precedent which 
ought not ... to be established";®^ but the answers 
that were returned by the defenders of the resolution 
on the constitutional issue were most various. Two 
Senators, one of whom quoted "Helvidius," denied 
that recognition was exclusively an executive function. 
Two others, on the contrary, admitted this, but pro- 
fessed themselves careless on that point. For the most 
part, the sponsors of the declaration pursued the fol- 
lowing line of reasoning: Diplomacy, they said, was 
now at an end and the President himself had appealed 
to Congress to provide a solution for the Cuban situa- 
tion. In response Congress was about to exercise its 
constitutional power of declaring war, and it had 
consequently the right to state the purpose of the war 
which it was about to declare. Said Senator Morgan 
of Alabama: 

I understand that declaration to be not a historical 
declaration of the existing facts or situation, but it is 
a high political decree, such a decree, for instance, as we 
put in our party platforms — a basis of political action, 
not as something already accomplished, but something 
that is to be accomplished — that being their right, that 
being the ground of their unification in achieving and 
accomplishing that right. That is the way I under- 
stand it.^2 

61 Record, 55 Cong., 2 Sess., Append., p. 290. 

62 lb., p. 290. 



82 THE PRESIDENT'S CONTROL 

Or, as Senator Nelson of Minnesota put it: 

The President has asked us to give him the right to 
make war to expel the Spaniards from Cuba. He has 
asked us to put that power in his hands; and when we 
are asked to grant that power — the highest power given 
under the Constitution — we have the right, the intrinsic 
right, vested in us by the Constitution, to say how and 
under what conditions and with what allies that war- 
making power shall be exercised.*^^ 

Recognition, as it is known to International Law, 
belongs, it seems clear, to the President alone, or to 
the President in conjunction with the Senate. This 
is certainly the verdict which the weight of both prece- 
dent and opinion sustains; and, it may be added, the 
weight of judicial utterance as well, though, for a 
reason which will appear later, judicial utterances in 
this field do not possess their usual authority. 

Furthermore, practical considerations point to the 
same conclusion. For even if we should admit that 
Congress, incidentally to discharging some legislative 
function like that of regulating commerce, might in 
some sense "recognize" a new state or government, 
the question still remains how it would communicate 
its recognition, having the power neither to dispatch 
nor to receive diplomatic agents. As was said of the 
States of the Confederation, Congress is as to other 
governments ''both deaf and dumb." Why, then, claim 
for it a power which it could not possibly use save in 
some roundabout and inconclusive fashion? 

It remains only to add that the power of recognition 
is sometimes as potent through its non-use as through 

^^ Record, XXXI, pt. 4, p. 3984. 



OF FOREIGN RELATIONS 83 

its use. Thus the downfall of Huerta was due directly 
to President Wilson's refusal to recognize him as the 
de facto government of Mexico. Moreover, President 
Wilson has announced his general intention not to 
recognize any government grounded on acts of vio- 
lence, albeit he has since shown ample prudence in 
applying this policy, as witness his recognition of a 
revolutionary government in Peru, of Carranza, and 
of the new Republic of Russia. Still, the statement 
of policy remains, and its possibilities are palpable. 



64 



^^Tineco, who recently seized the Presidency of Costa Rica, 
has made extraordinary efforts to regularize his usurpation under 
the Costa Rican Constitution, with a view to obtaining recogni- 
tion at Washington ; but thus far (July 19, 1917) his efforts have 
been unavailing. 



CHAPTER III 

The Making, Enforcement, and Termination of 
Treaties- -Executive Agreements 

I — By the constitutional clause dealing with the 
matter the Senate is associated with the President in 
the whole business of treaty making. Indeed, it was 
not till a late stage of the Federal Convention that 
the President was given any agency in treaty making, 
the entire function being vested in the Senate. The 
considerations that moved the Convention in its final 
disposal of the matter are stated by Jay in the Fed- 
eralist thus: 

It seldom happens in the negotiation of treaties, of 
whatever nature, but that perfect secrecy and immediate 
dispatch are sometimes requisite. There are cases where 
the most useful intelligence may be obtained, if the per- 
sons possessing it can be relieved from apprehensions 
of discovery. Those apprehensions will operate on those 
persons whether they are actuated by mercenary or 
friendly motives; and there doubtless are many of both 
descriptions, who would rely on the secrecy of the Presi- 
dent, but who would not confide in that of the Senate, 
and still less in that of a large popular Assembly. The 
convention have done well, therefore, in so disposing of 
the power of making treaties, that although the President 
must, in forming them, act by the advice and consent 
of the Senate, yet he will be able to manage the business 
of intelligence in such a manner as prudence may 
suggest. 

84 



CONTROL OF FOREIGN RELATIONS 85 

They who have turned their attention to the affairs 
of men, must have perceived that there are tides in them ; 
tides very irregular in their duration, strength, and di- 
rection, and seldom found to run twice exactly in the 
same manner or measure. To discern and to profit by 
these tides in national affairs is the business of those 
who preside over them; and they who have had much 
experience on this head inform us, that there frequently 
are occasions when days, nay, even when hours, are 
precious. The loss of a battle, the death of a prince, 
the removal of a minister, or other circumstance inter- 
vening to change the present posture and aspect of af- 
fairs, may turn the most favorable tide into a course 
opposite to our wishes. As in the field, so in the cabinet, 
there are moments to be seized as they pass, and they 
who preside in either should be left in capacity to im- 
prove them. So often and so essentially have we here- 
tofore suffered from the want of secrecy and despatch, 
that the Constitution would have been inexcusably de- 
fective, if no attention had been paid to those objects. 
Those matters which in negotiations usually require the 
most secrecy and the most despatch, are those prepara- 
tory and auxiliary measures which are not otherwise im- 
portant in a national view, than as they tend to facilitate 
the attainment of the objects of the negotiation. For 
these, the President will find no difficulty to provide ; and 
should any circumstance occur which requires the advice 
and consent of the Senate, he may at any time convene 
them. Thus we see that the Constitution provides that 
our negotiations for treaties shall have every advantage 
which can be derived from talents, information, integrity, 
and deliberate investigations, on the one hand, and from 
secrecy and despatch, on the other.^ 

At the outset Washington sought to associate the 
Senate with himself in the negotiation of treaties, but 
this method of proceeding went badly and was pres- 
ently abandoned. The episode is well recounted by 
Maclay in his "Jo^^^^l" • 

^ The Federalist (Lodge, Editor), pp. 403-4. 



86 THE PRESIDENT'S CONTROL 

August 22d, Saturday—Senate met, and went on the 
Coasting bill. The doorkeeper soon told us of the ar- 
rival of the President. The President was introduced, 
and took our Vice-President's chair. He rose and told 
us bluntly that he had called on us for our advice and 
consent to some propositions respecting the treaty to 
be held with the Southern Indians. Said he had brought 
General Knox with him, who was well acquainted with 
the business. He then turned to General Knox, who 
was seated on the left of the chair. General Knox 
handed him a paper, which he handed to the President 
of the Senate, who was seated on a chair on the floor 
to his right. Our Vice-President hurried over the paper. 
Carriages were driving past, and such a noise, I could 
tell it was something about "Indians," but was not master 
of one sentence of it. Signs were made to the door- 
keeper to shut the sashes. Seven heads, as we have since 
learned, were stated at the end of the paper which the 
Senate were to give their advice and consent to. They 
were so framed that this could be done by aye or no. . . . 
/' I had at an early stage of the business whispered Mr. 
Morris that I thought the best way to conduct the busi- 
ness was to have all the papers committed. My reasons 
were, that I saw no chance of a fair investigation of 
subjects while the President of the United States sat 
there, with his Secretary of War, to support his opinions 
and overawe the timid and neutral part of the Senate. 
Mr. Morris hastily rose and moved that the papers com- 
municated to the Senate by the President of the United 
States should be referred to a committee of five, to re- 
port as soon as might be on them. He was seconded 
by Mr. Gunn. Several members grumbled some ob- 
jections. . . . 

I rose and supported the mode of doing business by 
committees ; that committees were used in all public de- 
liberative bodies, etc. I thought I did the subject justice, 
but concluded the commitment can not be attended with 
any possible inconvenience. Some articles are already 
postponed until Monday. Whoever the committee are, 
if committed, they must make their report on Monday 



OF FOREIGN RELATIONS 87 

morning. I spoke through the whole in a low tone of 
voice. Peevishness itself, I think, could not have taken 
offense at anything I said. 

As I sat down, the President of the United States 
started up in a violent fret. "This defeats every purpose 
of my coming here," were the first words that he said. 
He then went on that he had brought his Secretary of 
War with him to give every necessary information; that 
the Secretary knew all about the business, and yet he 
was delayed and could not go on with the matter. He 
cooled, however, by degrees. Said he had no objection 
to putting off this matter until Monday, but declared he 
did not understand the matter of commitment. He might 
be delayed ; he could not tell how long. He rose a second 
time, and said he had no objection to postponement until 
Monday at ten o'clock. By the looks of the Senate this 
seemed agreed to. A pause for some time ensued. We 
waited for him to withdraw. He did so with a discon- 
tented air. Had it been any other man than the man 
whom I wish to regard as the first character in the world, 
I would have said, with sullen dignity. 

1 can not now be mistaken. The President wishes to 
tread on the necks of the Senate. Commitment will bring 
the matter to discussion, at least in the committee, where 
he is not present. He wishes us to see with the eyes 
and hear with the ears of his Secretary only. The Secre- 
tary to advance the premises, the President to draw the 
conclusions, and to bear down our deliberations with his 
personal authority and presence. Form only will be left 
to us. This will soon cure itself.^ 

It is probably to this same occasion that John Quincy 
Adams refers in his ''Memoirs" : 

Mr. Crawford told twice over the story of President 
Washington's having at an early period of his adminis- 
tration gone to the Senate with a project of a treaty 
to be negotiated, and been present at their deliberations 
upon it. They debated it and proposed alterations so 

2 Op. cit., pp. 128-32. 



88 THE PRESIDENT'S CONTROL 

that when Washington left the Senate Chamber he said 

he would be d d if he ever went there again. And 

ever since that time treaties have been negotiated by 
the Executive before submitting them to the considera- 
tion of the Senate. 

The President said he had come into the Senate about 
1 8 months after the first organization of the present 
government, and then heard that something like this had 
occurred.^ 

Actually, however, though the rule stated by Adams 
is the usual one, the President has not infrequently 
sought the advice of the Senate as to the expediency 
of negotiating a particular treaty and sometimes as 
to its very terms. The most notable instance of this 
sort was furnished by President Polk, who, in a mes- 
sage dated June lo, 1846, sent the Senate the draft 
of a proposed convention with Great Britain for the 
settlement of the Oregon boundary. He wrote : 

In the early periods of the Government the opinion 
and advice of the Senate were often taken in advance 
upon important questions of our foreign policy. General 
Washington repeatedly consulted the Senate and asked 
their previous advice upon pending negotiations with for- 
eign powers, and the Senate in every instance responded 
to his call by giving their advice, to which he always 
conformed his action. This practice, though rarely re- 
sorted to in later times, was, in my judgment, eminently 
wise, and may on occasions of great importance be prop- 
erly revived. The Senate are a branch of the treaty- 
making power, and by consulting them in advance of his 
own action upon important measures of foreign policy 
which may ultimately come before them for their con- 
sideration the President secures harmony of action be- 
tween that body and himself. The Senate are, more- 
over, a branch of the war-making power, and it may be 

^Op, citrp VI, p. 427. 



OF FOREIGN RELATIONS 89 

eminently proper for the Executive to take the opinion 
and advice of that body in advance upon any great ques- 
tion which may involve in its decision the issue of peace 
or war. . . . Should the Senate, by the constitutional 
majority required for the ratification of treaties, advise 
the acceptance of this proposition, or advise it with such 
modifications as they may upon full deliberation deem 
proper, I shall conform my action to their advice. Should 
the Senate, however, decline by such constitutional ma- 
jority to give such advice or to express an opinion on the 
subject I shall consider it my duty to reject the offer.* 

Other instances of like character are recounted by 
Mr. Foster in his volume on "The Practice of 
Diplomacy."" 

Contrariwise, the Senate may by means of resolu- 
tions advise the negotiation of treaties by the Presi- 
dent, but such resolutions, it is well recognized, are 
merely advisory; nor do they depend on the Senate's 
participation in the treaty making power. Indeed, such 
resolutions, which are sometimes concurrent, some- 
times joint resolutions, may originate in the House 
as well as the Senate. Numerous instances of the 
sort are enumerated in the recent edition of Mr. Cran- 
dall's volume on "Treaties, Their Making and En- 
forcement."® 

At this point two constitutional cjuestions arise. 
The first is this : Suppose a negotiation already under 
way, has the Senate the right to interpose in the mat- 
ter and communicate its views to the President? In 
the debate given in Part III of this work between Sen- 
ators Spooner and Bacon, the latter answers this ques- 

* Richardson, IV, p. 449. 

5 Op. cit., pp. 269-73- 

^Op. cit. (2nd edition), pp. 73-4. 



90 THE PRESIDENT'S CONTROL 

tion in the affirmative, the former in the negative. 
Probably the correct answer is that the Senate has 
the right to communicate its views but that the Presi- 
dent may make such use of them as he chooses, that 
being the nature of "advice." 

The second question is as to the right of the Presi- 
dent to refuse the Senate information with respect to 
a pending negotiation, if he deems it "incompatible 
with the public interest" to divulge such information. 

The right of the President to refuse information on 
this ground was first asserted by Washington against 
a call by the House of Representatives for informa- 
tion with respect to the negotiation of the Jay Treaty 
of 1794. The words used by the President on this 
occasion were as follows: 

The nature of foreign negotiations requires caution, 
and their success must often depend on secrecy; and 
even when brought to a conclusion a full disclosure of 
all the measures, demands, or eventual concessions which 
may have been proposed or contemplated would be ex- 
tremely impolitic; for this might have a pernicious in- 
fluence on future negotiations, or produce immediate 
inconveniences, perhaps danger and mischief in relation 
to other powers. The necessity of such caution and 
secrecy was one cogent reason for vesting the power 
of making treaties in the President, with the advice and 
consent of the Senate, the principle on which that body 
was formed confining it to a small number of members. 
To admit, then, a right in the House of Representatives 
to demand and to have as a matter of course all the 
papers respecting a negotiation with a foreign power 
would be to establish a dangerous precedent.'^ 

It should be noted that the call for information 

■^ Richardson, I, pp. 194-5. 



OF FOREIGN RELATIONS 91 

which Washington thus refused was made on the as- 
sumption that the information was necessary in order 
to enable the House to discharge properly a constitu- 
tional function. Nevertheless, the right of the Presi- 
dent to refuse the information on the ground of 
incompatibility with the public interest was admitted 
by Madison, who championed the House's view of its 
powers on this occasion, without qualification. He 
said: 

On the first point, he observed, that the right of the 
House to apply for any information they might want, 
had been admitted by a number in the minority, who had 
opposed the exercise of the right in this particular case. 
He thought it clear that the House must have a right in 
all cases to ask for information which might assist their 
deliberations on the subjects submitted to them by the 
constitution ; being responsible, nevertheless, for the pro- 
priety of the measure. He was as ready to admit that 
the Executive had a right, under a due responsibility, 
also, to withhold information, when of a nature that did 
not permit disclosure of it at the time. And if the re- 
fusal of the President had been founded simply on a 
representation that the contents of the papers asked for, 
required it, although he might have regretted the refusal, 
he should have been little disposed to criticise it.* 

The same reasoning seems applicable to a call for 
information by the Senate; in point of fact, the ma- 
jority of the cases in which the President has refused 
information have originated in calls for it by the 
Senate.^ Furthermore, such calls from either of the 
houses are today almost invariably qualified by the 
phrase, "if not incompatible with the public interest," 

8 Benton, I, p. 697. 

® See Richardson, Index, under title "President." 



92 THE PRESIDENT'S CONTROL 

or some phrase of like import. It should be noted too, 
that Senator Bacon, in his speech given in Part III, 
admits the President's right in this respect. 

A treaty having been negotiated by the President 
is then submitted by him to the Senate for its assent, 
which may be given unconditionally or conditionally, 
the conditions being stated in the form of amendments 
to the treaty. This step in the process of treaty 
making is sometimes spoken of as "ratification," but 
this usage is inaccurate. The treaty is finally ratified 
for this Government by the President, whence it fol- 
lows that he may ratify or not; and the cases are 
numerous in which the President, dissatisfied with the 
conditions the Senate has imposed upon its assent to 
a treaty, has refused to proceed further with it, with 
the result that the treaty has fallen through/^ Like- 
wise there are numerous instances in which the Presi- 
dent has withdrawn treaties "from the consideration 
of the Senate, either to effect changes by negotiation 
or to terminate proceedings thereon. "^^ 

2 — At the threshold of the subject of Treaty En- 
forcement we encounter a constitutional question 
which has troubled writers from the beginning of our 
Government. The question is this: If a treaty, made 
in due form by the President with the advice and 
consent of the Senate, requires certain action by Con- 
gress before it can be carried into effect, is Congress 
under constitutional obligation to take such action or 
is it free to refuse to do so? 

loCrandall, p. 98. 
^1 Ih., pp. 99-100. 



OF FOREIGN RELATIONS 93 

This question first arose in connection with the Jay- 
Treaty, the carrying out of certain clauses of which 
was dependent upon an appropriation of funds by 
Congress. By Article I, Section 9 of the Constitu- 
tion, "no money shall be drawn from the Treasury 
but in consequence of appropriations made by law," 
that is, as it has always been held, by an act of Con- 
gress. When a bill was brought into the House for 
appropriating the sums needed for the treaty, opposi- 
tion at once developed, and the claim was advanced 
that the House was free to grant or withhold the re- 
quired funds on its own view of the merits of the 
treaty. This position, moreover, albeit the appropria- 
tion was finally passed, received the sanction of a 
majority of the House, in the following terms : 

Resolved, That, it being declared by the second section 
of the second article of the constitution, "that the Presi- 
dent shall have power, by and with the advice of the 
Senate, to make Treaties, provided two thirds of the 
Senators present concur," the House of Representatives 
do not claim any agency in making Treaties; but, that 
when a Treaty stipulates regulations on any of the sub- 
jects submitted by the constitution to the power of Con- 
gress, it must depend, for its execution, as to such 
stipulations, on a law or laws to be passed by Congress. 
And it is the constitutional right and duty of the House 
of Representatives, in all such cases, to deliberate on 
the expediency or inexpediency of carrying such Treaty 
into effect, and to determine and act thereon, as, in their 
judgment, may be most conducive to the public good.^^ 

The Administration, on the other hand, promptly 
challenged the validity of these propositions. Its posi- 

12 Benton, I, p. 696. 



94 THE PRESIDENT'S CONTROL 

tion is stated in outline in the message of Washington, 
just referred to, denying the House certain informa- 
tion on this occasion, but much more elaborately by 
Hamilton in the draft of a message which he prepared 
on the subject at Washington's request.'' The latter 
document is much too long to quote here, but a very 
satisfactory summary of it is furnished by Mr. Cran- 
dall, as follows : 

The argument of Hamilton, as expressed in various 
letters written at the time and in his draft of a message, 
was that the Constitution empowered the President and 
Senate to make treaties ; that to make a treaty as between 
nations meant to conclude a contract obligatory on their 
good faith; that a contract could not be obligatory to 
the validity of which the assent of another body was 
constitutionally necessary ; that the Constitution declared 
a treaty made under the authority of the United States 
to be a supreme law, but that that could not be a supreme 
law to the validity of which the assent of another body 
in the state was constitutionally necessary; that a right 
of discretionary assent to a contract, under whatever 
color it might be claimed, was a right to participate in 
the making of it; and hence that a discretionary right 
in the House to assent to a treaty, or what was equiva- 
lent, to execute it, would negative two important pro- 
visions of the Constitution, namely, that the President 
and Senate have the power to make treaties, and that 
the treaties so made were laws. It was, he contended, 
one thing, that a treaty pledging the faith of the nation 
should by force of moral duty oblige the legislative will 
to carry it into effect, quite another that it should be 
itself a law. The latter was the case under the Constitu- 
tion. There were no express limits to the treaty-making 
power, and it was a reasonable presumption that it was 
intended to extend to all treaties usual among nations 
and so to be commensurate with the variety of exigencies 

13 Works, VII, p. 556 ff. 



OF FOREIGN RELATIONS 95 

which might arise from intercourse with other nations. 
Treaties of peace, alliance and commerce were usual 
among nations. Treaties of peace frequently included 
indemnification, pecuniary or otherwise. Treaties of 
alliance necessarily stipulated for the union of forces, 
and the furnishing of pecuniary or other aid. Treaties 
of commerce regulated the external commerce of the 
nation. Unless the treaty power might also act, it would , 
often be inadequate for mere treaties of peace, and 
always so for treaties of alliance and of commerce. The 
action of the House was not always deliberative in 
making appropriations — as for instance, in making an 
appropriation to defray the expense of an office created 
by the Constitution or a prior act of Congress. It was 
discretionary only when the Constitution and laws placed 
it under no obligation or prohibition. There was, how- 
ever, this difference between the obligation of the Con- 
stitution and the obligation of laws, the former enjoined 
obedience always, the latter, until annulled by the proper 
authority. While it was true that the Constitution pro- 
vided no method of compelling the legislative body to 
act, it was, nevertheless, under a constitutional, legal, 
and moral obligation to act where action was prescribed. 
If the legislative power was competent to repeal this law 
by a subsequent law, it must be by the whole legislative 
power, not by the mere refusal of one branch to give ' 
effect to it. A legal discretion to refuse the execution 
of a preexisting law was virtually a power to repeal it. 
*'Hence,'' he said, "it follows that the House of Repre- 
sentatives have no moral power to refuse the execution 
of a treaty which is not contrary to the Constitution, 
because it pledges the public faith; and have no legal 
power to refuse its execution because it is a law — until 
at least it ceases to be a law by a regular act of revoca- 
tion of the competent authority."^* 

This argument has been widely accepted by writers, 
but it must today be regarded as inconclusive. In 

i*Crandall, pp. 170-1. 



96 THE PRESIDENT'S CONTROL 

contending for the entire validity of the treaty, both 
as an international compact and as "law of the land," 
independently of any action by Congress, Hamilton 
was undoubtedly right; but it does not follow from 
this that the House was constitutionally bound to ap- 
propriate the money which the Executive needed in 
order to carry out the treaty. Hamilton himself ap- 
pears to admit that Congress may repeal a treaty in 
its quality as law of the land; and at any rate the 
proposition is today well established that Congress 
may do this in the exercise of its legislative powers — 
that, as between a treaty and an act of Congress other- 
wise constitutional, the later in point of time prevails. 
But, Hamilton objects, such repeal must be "by the 
whole legislative power, not by the mere refusal of 
one branch to give effect to it." This is clear non- 
sense. "The whole legislative power" which Hamilton 
thus invokes resides in the two houses sitting and act- 
ing separately; and it is not apparent what difference 
there would be between the House of Representatives 
passing upon a proposal which would effect the repeal 
of a treaty as domestic law and the same body passing 
upon a bill to appropriate money to carry out a treaty. 
In other words, in voting the appropriation to carry 
out the Jay Treaty, the House of Representatives was 
exercising its part of "the whole legislative power," 
and had, accordingly, its right to exercise its full con- 
stitutional discretion in the premises. But the fact is 
that Hamilton was ready to take his stand on the 
broader ground of the supremacy of the treaty making 
power over "the whole legislative power," at least if 



OF FOREIGN RELATIONS 97 

the testimony of Jefferson is to be relied upon, that 
he argued in Cabinet for the view that the President 
and Senate could make a treaty of neutrality which 
would prevent Congress from declaring war in a par- 
ticular case/^ That is a proposition which, if pressed 
to its logical conclusion, refutes itself. Thus Hamilton 
warmly and convincingly combated Jefferson's view 
that the treaty making power could not invade the 
field of Congress's powers. Yet by the Constitution 
an act of Congress made in pursuance of the Consti- 
tution is as much supreme law of the land as is a 
treaty made under the authority of the United States, 
and the President as Chief Executive is bound to see 
that such laws are enforced. But now, adopting Ham- 
ilton's position, how is the President ever to negotiate 
a treaty the terms of which in any way collide with 
the provisions of an existing act of Congress? How, 
indeed, is he ever to recommend changes in existing 
legislation? The conclusion, therefore, that we must 
come to is that neither treaties nor acts of Congress 
can curtail the discretion which constitutionally belongs 
to any organ of Government, and the only question 
•to be asked in each case is. What is the measure of 
such discretion? 

^But this conclusion raises another question, namely, 
whether there are any other treaty provisions than 
those requiring an appropriation of money which the 
treaty making power is unable to render operative 
without Congressional sanction. It has frequently been 
contended that treaty provisions which would alter 

'^^ lb., p. 241. Hamilton's words at pp. 13-14, supra, seem to 
imply the same view. 



98 THE PRESIDENT'S CONTROL 

the revenue acts are of this character, inasmuch as 
the Constitution requires that "all bills for raising 
revenue shall originate in the House of Representa- 
tives." The answer to this contention is that a treaty 
is not a "bill" in any sense of the term; besides which 
the Supreme Court has repeatedly recognized that 
treaty provisions may modify existing revenue laws/^ 
But in actual practice customs agreements with foreign 
nations are ordinarily submitted to Congress in one 
way or other." 

Indeed, the treaty making power sometimes elects, 
even when acting without the field of Congress's enu- 
merated powers, to leave it to Congress to put its en- 
gagements into effect by supplementary legislation; 
and this Congress is able to do by virtue of its "neces- 
sary and proper" powers. Such imperfect treaty pro- 
visions do not become law of the land until Congress 
has acted.^^ 

We come now to that class of treaty provisions 
which is capable of enforcement without legislation 
by Congress. The question that arises with reference 
to such provisions is whether they address themselves 
primarily to the Executive or to the Judiciary, and 
this question is to be answered in the following way : 

16 See Bertram v. Robertson, 122 U. S. 116; and Whitney v. 
Robertson, 124 U. S. 190. 

17 See Sen. Doc. 231, 56 Cong., 2 Sess., VII, 25; cf. H. Reps., 
48 Cong., 2 Sess., Ill, no. 2680. 

18 See Foster v. Neilson, 2 Peters 253, 314, with which com- 
pare Justice Baldwin's opinion in Pollard's Lessee v. Kibbe, 14 
Peters 353, 415. More recent cases illustrating the same point 
are U. S. v. Rauscher, 119 U. S. 407; and Neely v. Henkel, 180 
U. S. 109. 



OF FOREIGN RELATIONS 99 

If the provision is primarily for the benefit of the 
other contracting sovereignty in its quahty of govern- 
ment, as for example is the case with extradition 
agreements, it addresses itself first of all to the Presi- 
dent, the organ of foreign relations; if on the other 
hand the provision furnishes the basis of private claims 
by the citizens or subjects of the other contracting 
sovereignty, such claims must first be prosecuted 
through the courts. 

As a situation illustrative of the first class of treaty 
provision, we may take the famous case of Thomas 
Nash, alias Jonathan Robbins, which arose in 1799 
under the twenty-seventh article of the Jay Treaty. 
This article provided for the reciprocal surrender by 
the contracting governments of persons charged in 
the dominions of either with murder or forgery, and 
taking refuge in the territory of the other. Nash, 
then in the territory of the United States, having been 
charged by Great Britain with murder, was surren- 
dered to the British authorities without a judicial 
hearing, upon the order of President Adams, and was 
subsequently tried and executed in London. The case 
created a great stir and presently resolutions were 
introduced into the House of Representatives with 
reference to it. The gravamen of the criticism against 
Adams was that the matter of the surrender was one 
for the courts and not for the Executive. John Mar- 
shall, then a member of the House, undertook to de- 
fend Adams's course, and with brilliant success. On 
the question of executive authority he said: 

The gentleman from Pennsylvania and the gentleman 



100 THE PRESIDENT'S CONTROL 

from Virginia have both contended that this was a case 
proper for the decision of the court, because points of 
law occurred, and points of law must have been decided 
in its determination. 

The points of law which must have been decided, are 
stated by the gentleman from Pennsylvania to be, first, 
a question whether the offence was committed within the 
British jurisdiction; and, secondly, whether the crime 
charged was comprehended within the treaty. 

It is true, sir, these points of law must have occurred, 
and must have been decided; but it by no means follows 
that they could only have been decided in court. . . . 

The question whether vessels captured within three 
miles of the American coast, or by privateers fitted out 
in the American ports, were legally captured or not, and 
whether the American Government was bound to restore 
them, if in its power, were questions of law; but they 
were questions of political law, proper to be decided, 
and they were decided by the Executive, and not by 
the courts. 

The casus foederis of the guarantee was a question 
of law, but no man could have hazarded the opinion that 
such a question must be carried into court, and can only 
be there decided. So the casus foederis, under the 
twenty-seventh article of the treaty with Great Britain, 
is a question of law, but of political law. The question 
to be decided is, whether the particular case proposed 
be one in which the nation has bound itself to act, 
and this is a question depending on principles never sub- 
mitted to courts. . . . 

The case was in its nature a national demand made 
upon the nation. The parties were the two nations. They 
cannot come into court to litigate their claims, nor can 
a court decide them. Of consequence, the demand is 
not a case for judicial cognizance. 

The President is the sole organ of the nation in its 
external relations, and its sole representative with for- 
eign nations. Of consequence, the demand of a foreign 
nation can only be made on him. 

He possesses the whole Executive power. He holds 



OF FOREIGN RELATIONS loi 

and directs the force of the nation. Of consequence, 
any act to be performed by the force of the nation is to 
be performed through him. 

He is charged to execute the laws. A treaty is de- 
clared to be a law. He must then execute a treaty, where 
he, and he alone, possesses the means of executing it. 

The treaty, which is a law, enjoins the performance 
of a particular object. The person who is to perform 
this object is marked out by the constitution, since the 
person is named who conducts the foreign intercourse, 
and is to take care that the laws be faithfully executed. 
The means by which it is to be performed, the force of 
the nation, are in the hands of this person. Ought not 
this person to perform the object, although the particular 
mode of using the means has not been prescribed ? Con- 
gress, unquestionably, may prescribe the mode, and Con- 
gress may devolve on others the whole execution of the 
contract; but, till this be done, it seems the duty of the 
Executive Department to execute the contract by any 
means it possesses. . . . 

The Executive is not only the constitutional depart- 
ment, but seems to be the proper department to which 
the power in question may most wisely and most safely 
be confided. 

The department which is intrusted with the whole 
foreign intercourse of the nation, with the negotiation 
of all its treaties, with the power of demanding a re- 
ciprocal performance of the article, which is accountable 
to the nation for the violation of its engagements with 
foreign nations, and for the consequences resulting from 
such violation, seems the proper department to be in- 
trusted with the execution of a national contract like 
that under consideration. 

If, at any time, policy may temper the strict execution 
of the contract, where may that political discretion be 
placed so safely as in the department whose duty it is 
to understand precisely the state of the political inter- 
course and connection between the United States and 
foreign nations, to understand the manner in which the 
particular stipulation is explained and performed by for- 



102 THE PRESIDENT'S CONTROL 

eign nations, and to understand completely the state of 
the Union? 

This department, too, independent of judicial aid, 
which may, perhaps, in some instances, be called in, is 
furnished with a great law officer, whose duty it is to 
understand and to advise when the casus foederis occurs. 
And if the President should cause to be arrested under 
the treaty an individual who was so circumstanced as 
not to be properly the object of such an arrest, he may 
perhaps bring the question of the legality of his arrest 
before a judge, by a writ of habeas corpus. 

It is then demonstrated, that, according to the prin- 
ciples of the American Government, the question whether 
the nation has or has not bound itself to deliver up any 
individual, charged with having committed murder or 
forgery within the jurisdiction of Britain, is a ques- 
tion the power to decide which rests alone with the 
Executive Department.^^ 

To this statement one exception must be taken, and 
that is to the assertion that "Congress may unques- 
tionably prescribe the mode and Congress may devolve 
on others the whole execution of the contract." This 
admission conflicts with the entire tenor of Marshall's 
argument, which rests at bottom on the proposition 
that the act of surrender was a diplomatic transaction 
and therefore an executive act. This proposition has, 
moreover, received the repeated approval of the Su- 
preme Court in recent years, an instance being the 
following passage from its decision in Terlinden v. 
Ames: 

The power to surrender is clearly included within the 
treaty-making power and the corresponding power of 
appointing and receiving ambassadors and other public 
ministers. Holmes v. Jennison, 14 Pet. 540, 569. Its 

^8 Benton, II, pp. 466-7. 



OF FOREIGN RELATIONS 103 

exercise pertains to public policy and governmental ad- 
ministration, is devolved on the executive authority, and 
the warrant of surrender is issued by the Secretary of 
State as the representative of the President in foreign 
affairs. . . . 

The decisions of the executive department in matters 
of extradition, within its own sphere, and in accordance 
with the Constitution, are not open to judicial revision, 
and it results that where proceedings for extradition, 
regularly and constitutionally taken under the acts of 
Congress, are pending, they cannot be put an end to 
by writs of Jmbeas corpus}^ ^^/^ 

It is true that by the Act of 1848,^^ which was 
enacted in effectuation of Article X of the Webster- 
Ashburton Treaty of 1842, complaints for extradition 
may today be lodged with any court of record of gen- 
eral jurisdiction, which hears evidence as to the crim- 
inality of the offense charged, under the laws of the 
country demanding extradition; but the final act of 
surrender still rests with the discretion of the Presi- 
dent, nor could it constitutionally rest elsewhere. 

An illustration of treaty provisions capable of en- 
forcement by the courts is furnished by stipulations 
removing the disability of alienage in the holding of 
real estate. Thus Article IX of the Jay Treaty pro- 
vided as follows: 

It is agreed that British subjects who now hold lands 
in the territories of the United States, and American 
citizens who now hold lands in the dominions of His 
Majesty, shall continue to hold them according to the 
nature and tenure of their respective estates and titles 

20 184 U. S. 270, 289-90. See also Charlton v. Kelly, 229 
U. S. 447. 
21 R. S. § 5270. 



104 THE PRESIDENT'S CONTROL 

therein ; and may grant, sell or devise the same to whom 
they please, in like manner as if they were natives; and 
that neither they nor their heirs or assigns shall, so far 
as may respect the said lands, and the legal remedies 
incident thereto, be regarded as aliens. 

Such engagements have frequently clashed with 
State laws touching the same subject, but have been 
invariably sustained by the Court.^^ 

The question of the enforcement of treaties raises 
naturally the question of their interpretation. To 
which organ of the Government does this belong in 
the case of self -executing provisions, which are law 
of the land? The answer is, to that organ which, at 
the moment, is called upon to enforce them. How- 
ever, it must be added: first, that the judiciary will 
always give great weight to any known interpretation 
by the Executive, and secondly, that any judicial in- 
terpretation of a treaty provision must yield to the 
determination by the President or Congress, as the 
case may be, that such treaty provision is no longer 
in force. As was said by the Court in Botiller v. 
Dominguez : 

This Court . . . has no power to set itself up as the 
instrumentality for enforcing the provisions of a treaty 
with a foreign nation which the Government of the United 
States, as a sovereign power, chooses to disregard.^^ 

The reason underlying this rule is clear : It is that 
no treaty provision can operate as law of the land 

22 See generally the present writer's National Supremacy. Holt 
& Co., 1913. 

23 130 U. S. 238, 247. 



OF FOREIGN RELATIONS 105 

which is not first operative as an international engage- 
ment, and the question whether it is so operative is 
a "political question."^* 

We come now to the President's authority, in the 
absence of statutory provision, to anticipate and pre- 
vent a pending breach of a treaty provision which sup- 
ports private rights. If we are to follow the line of 
reasoning taken by the Supreme Court in the familiar 

2* It has been argued that a known Interpretation of a treaty 
provision by the Executive is conclusive on the courts. See a 
note in the Michigan Law Review (Vol. 15, p. 487) on the de- 
cision of the Court in the case of the Appam, 243U. S. 124. This 
was a British vessel captured by the German raider Moewe 
and brought into Norfolk by a prize crew. The question in the 
case was whether the captors were entitled, under the Treaties 
of 1799 and 1828 with Prussia, to retain their prize in American 
waters throughout the war. The State Department resolved the 
question in the negative, and the Supreme Court, in the action 
instituted by the former British owners, arrived at the same 
conclusion but by an independent line of reasoning. The argu- 
ment of the writer in the note just cited is that, inasmuch as 
the interpretation of a treaty provision in its quality as an inter- 
national compact, or in response to a political demand thereon, 
is a political question, the determination arrived at by the po- 
litical department is binding on the courts when they come to 
interpret the same provision in private cases. This argument 
receives some support from the Court's own language in the 
case of in re Cooper, 143 U. S. 472, 502-5; also from Justice 
Gray's concurring opinion in the Rauscher case; but it clearly 
runs counter to the majority of opinions, written in both in- 
stances by Justice Miller, in the Head Money Cases (given 
later), 112 U. S. 580, and the Rauscher case, 119 U. S. 407. I 
feel bound to add that the Court's decision of the principal ques- 
tion before it in the Appam Case seems to me to run counter 
to a good deal of law. Indeed, I fail to see how the Court ever 
got jurisdiction of the vessel. See Exchange v. McFadden, 7 
Cranch 116. 



io6 THE PRESIDENT'S CONTROL 

Neagle and Debs cases, the power of the President in 
such a situation is very broad indeed. 

The facts of the former case were as follows: A 
disgruntled suitor, one Terry, threatened to shoot 
Justice Field of the United States Supreme Court at 
sight. To meet the danger the President detailed 
Neagle, a United States marshal, to protect the Jus- 
tice, and Neagle, intercepting Terry as he was ap- 
proaching Field in a hostile manner, shot and killed 
him. This occurred in the summer of 1889. On 
being arrested for homicide by the authorities of 
California, where the act occurred, Neagle applied for 
a writ of habeas corpus in the United States Court, 
and the question turned on his right to act as he had 
done. No act of Congress was pleadable that covered 
the ground, but the Supreme Court vindicated him 
on the basis of the President's authority in the situa- 
tion, saying: 

The legislative branch of the government can only 
protect the judicial officers by the enactment of laws for 
that purpose, and the argument we are now combating 
assumes that no such law has been passed by Congress. 

If we turn to the executive department of the govern- 
ment, we find a very different condition of affairs. The 
Constitution, section 3, Article 2, declares that the Presi- 
dent "shall take care that the laws be faithfully exe- 
cuted," and he is provided with the means of fulfilling 
this obligation by his authority to commission all the 
officers of the United States, and, by and with the advice 
and consent of the Senate, to appoint the most important 
of them and to fill vacancies. He is declared to be com- 
mander-in-chief of the army and navy of the United 
States. The duties which are thus imposed upon him 
he is further enabled to perform by the recognition in 



OF FOREIGN RELATIONS 107 

the Constitution, and the creation by acts of Congress, 
of executive departments, which have varied in number 
from four or five to seven or eight, the heads of which 
are familiarly called cabinet ministers. These aid him 
in the performance of the great duties of his office, and 
represent liim in a thousand acts to which it can hardly 
be supposed his personal attention is called, and thus 
he is enabled to fulfill the duty of his great department, 
expressed in the phrase that '*he shall take care that the 
laws be faithfully executed." 

Is this duty limited to the enforcement of acts of Con- 
gress or of treaties of the United States according to 
their express terms, or does it include the rights, duties 
and obligations growing out of the Constitution itself, our 
international relations, and all the protection implied by 
the nature of the government under the Constitution ? . . . 

We cannot doubt the power of the President to take 
measures for the protection of a judge of one of the 
courts of the United States, who, while in the discharge 
of the duties of his office, is threatened with a personal 
attack which may probably result in his death, and we 
think it clear that where this protection is to be afforded 
through the civil power, the Department of Justice is 
the proper one to set in motion the necessary means of 
protection.^^ 

In the Debs case, which grew out of the Chicago 
strike of 1894, the Court, with clear reference to the 
action of the President in dispatching troops to the 
scene of trouble in order to keep the United States 
mails and interstate commerce moving, said: 

The entire strength of the nation may be used to en- 
force in any part of the land the full and free exercise 
of all national powers and the security of all rights en- 
trusted by the Constitution to its care. The strong arm 
of the national government may be put forth to brush 
away all obstructions to the freedom of interstate com- 

25 135 u. S. I, 63-4. 



io8 THE PRESIDENT'S CONTROL 

merce or the transportation of the mails. If the emer- 
gency arises, the army of the Nation, and all its militia, 
are at the service of the Nation to compel obedience 
to its laws.^^ 

Furthermore, the actual decision in this case thrust 
a new weapon into the hands of the Executive in such 
exigencies, the right to invoke the equity powers of 
the United States courts to enjoin a threatened breach 
of the law to the detriment of private rights, and thus 
to place future law breakers in contempt of court. 
In harmony with this principle, when in 1906 the 
City of San Francisco adopted legislation alleged to 
be derogatory of the rights of Japanese subjects under 
the treaty of 1894 between the United States and 
Japan, the Government filed a bill in equity in the 
Circuit Court of California.^^ Later, however, with 
the withdrawal of the objectionable measure by the 
municipal authorities on account of the strenuous in- 
sistence of President Roosevelt, the suit was dis- 
missed. 

Lastly, we should note in passing the duty of the 
President to take such measures as are necessary to 
the fulfillment of the obligations of the United States 
at International Law. In this connection the action 
of President Wilson in taking over the wireless sta- 
tion at Siasconset at the opening of the present war, 
in order to prevent possible breaches of our neutrality, 
is still fresh in mind. The opinion of the Attorney- 
General sustaining this action contains the following 
words : 

2« 158 U. S. 564, 582. 

27 12 Mich. Law Rev. 583. 



OF FOREIGN RELATIONS 109 

The President of the United States is at the head of 
one of the three great coordinate departments of the 
Government. He is Commander-in-Chief of the Army 
and Navy. ... If the President is of the opinion that 
the relations of this country with foreign nations are, 
or are Hkely to be, endangered by action deemed by him 
inconsistent with a due neutraUty, it is his right and duty 
to protect such relations ; and in doing so, in the absence 
of any statutory restrictions, he may act through such 
executive office or department as appears best adapted 
to effectuate the desired end. ... I do not hesitate, in 
view of the extraordinary conditions existing, to advise 
that the President, through the Secretary of the Navy, 
or any other appropriate department, close down or take 
charge of, and operate, the plant . . . should he deem 
it necessary to secure obedience to his proclamation of 
neutrality.^^ 

3 — In turning to the subject of the termination of 

treaties, it behooves us to recall again the dual nature 

of treaties under the Constitution. In their quality 

of domestic law treaties are at all times subject to 

repeal by later conflicting acts of Congress which are 

otherwise constitutional. This doctrine, which is 

grounded on the familiar principle of leges posteriores 

priores contrarias ahrogant, was first advanced in 

certain opinions of Attorneys-General of the United 

States and is now the settled doctrine of the Supreme 

Court.^^ It is stated most broadly by Justice Miller in 

his opinion in the ''Head Money Cases," as follows : 

2^ New York Times, Sept. 14, I9i4- The President, acting 
within his own field, is not bound by judicial views of Inter- 
national Law, Francis Wharton, Digest, § 238. 

295 Opinions 333, 345; 6 ih. 291; 13 ih. 354; Taylor v. Morton, 
2 Curt. C. C 454; Cherokee Tobacco Case, 11 Wall. 621; "Head 
Money Cases," infra. See also U. S. v. Lee Yen Tai, 185 
U. S. 213. 



I lo THE PRESIDENT'S CONTROL 

A treaty is primarily a compact between independent 
nations. It depends for the enforcement of its provisions 
on the interest and the honor of the governments which 
are parties to it. If these fail, its infraction becomes the 
subject of international negotiations and reclamations, 
so far as the injured party chooses to seek redress, which 
may in the end be enforced by actual war. It is obvious 
that with all this the judicial courts have nothing to do 
and can give no redress. But a treaty may also contain 
provisions which confer certain rights upon the citizens 
or subjects of one of the nations residing in the terri- 
torial limits of the other, which partake of the nature 
of municipal law, and which are capable of enforcement 
as between private parties in the courts of the country. 
An illustration of this, character is found in treaties, 
which regulate the mutual rights of citizens and subjects 
of the contracting nations in regard to rights of property 
by descent or inheritance, when the individuals concerned 
are aliens. The Constitution of the United States places 
such provisions as these in the same category as other 
laws of Congress by its declaration that "this Constitu- 
tion and the laws made in pursuance thereof, and all 
treaties made or which shall be made under authority of 
the United States, shall be the supreme law of the land." 
A treaty, then, is a law of the land as an act of Congress 
is, whenever its provisions prescribe a rule by which the 
rights of the private citizen or subject may be deter- 
mined. And when such rights are of a nature to be 
enforced in a court of justice, that court resorts to the 
treaty for a rule of decision for the case before it as it 
would to a statute. 

But even in this aspect of the case there is nothing 
in this law which makes it irrepealable or unchangeable. 
The Constitution gives it no superiority over an act of 
Congres^ in this respect, which may be repealed or modi- 
fied by an act of a later date. Nor is there anything in 
its essential character, or in the branches of the govern- 
ment by which the treaty is made, which gives it this 
superior sanctity. 

A treaty is made by the President and the Senate. 



OF FOREIGN RELATIONS iii 

Statutes are made by the President, the Senate and the 
House of Representatives. The addition of the latter 
body to the other two in making a law certainly does 
not render it less entitled to respect in the matter of its 
repeal or modification than a treaty made by the other 
two. If there be any difference in this regard, it would 
seem to be in favor of an act in" which all three of the 
bodies participate. And such is, in fact, the case in a 
declaration of war, which must be made by Congress, 
and which, when made, usually suspends or destroys 
existing treaties between the nations thus at war. 

In short, we are of opinion that, so far as a treaty 
made by the United States with any foreign nation can 
become the subject of judicial cognizance in the courts 
of this country, it is subject to such acts as Congress may 
pass for its enforcement, modifitfation, or repeal.' 



30 



But this language, it will be noted, still leaves open 
the question as to which branch of the Government 
may terminate treaties of the United States in their 
quality as international compacts. A treaty may, of 
course, be superseded by a new treaty made in the 
same way as its predecessor was. Aside from this, 
a treaty of the United States may either be terminated 
by notice, given in accordance with the treaty itself; 
or it may be abrogated by the Government for reasons 
deemed by it to be sufficient in International Law; or 
finally, it may be adjudged as having lapsed. First 
we may consider the question as to which organ of 
the Government should pronounce upon the termina- 
tion of a treaty or decree its abrogation. 

The first case of outright abrogation by the United 
States occurred in 1798, when Congress, by the act 
of July 7 of that year, pronounced the United States 

80 112 U. S. 580, 598-9. 



112 THE PRESIDENT'S CONTROL 

"freed and exonerated from the stipulations" of the 
Treaties of 1778 with France.^^ This act was fol- 
lowed two days later by an act authorizing limited 
hostilities against the same country; and in the case 
of Bas V. Tingy^^ the Supreme Court treats the act 
of abrogation as simply one of a bundle of acts de- 
claring "public war" upon the French Republic. 

The initial precedent in the matter of termination 
by notice occurred in 1846, when by the joint resolu- 
tion of April 27, Congress "authorized" the President 
"at his discretion" to give the British Government 
notice of the abrogation of the Convention of August 
6, 1827, relative to the joint occupation of the Oregon 
Territory. As the President himself had requested 
the resolution, the episode clearly supports the theory 
that international conventions to which the United 
States is party must be terminated by act of Con- 
gress.*^ 

There are later precedents, however, which obscure 
this verdict somewhat. One of .the most recent ones 
is discussed by ex-President Taft in his little volume 
on "The Presidency," as follows: 

31 1 Stat. L. 578. 

32 4 Dallas 37. 

33 See Richardson, IV, 397 ; and Benton, XV, 478. Mangum 
of North Carolina denied that Congress could "authorize" the 
President to give notice: "He entertained not a particle of 
doubt that the question never could have been thrown upon 
Congress unless as a war or quasi war measure. . . . Congress 
had no power of making or breaking a treaty." He owned, 
however, that "he might appear singular" in his view of the 
matter. Loc. cit, p. 472. 



OF FOREIGN RELATIONS 113 

In my administration the lower house passed a resolu- 
tion directing the abrogation of the Russian Treaty of 
1832, couched in terms which would have been most 
offensive to Russia, and it did this by a vote so nearly 
unanimous as to indicate that in the Senate too, the same 
resolution would pass. It would have strained our rela- 
tions with Russia in a way that seemed unwise. The 
treaty was an old one, and its construction had been con- 
stantly the subject of controversy between the two coun- 
tries, and therefore, to obviate what I felt would produce 
unnecessary trouble in our foreign relations, I indicated 
to the Russian ambassador the situation, and advised him 
that I deemed it wise to abrogate the treaty, which, as 
President I had the right to do, by due notice couched 
in a friendly and courteous tone and accompanied by 
an invitation to begin negotiations for a new treaty. 
Having done this, I notified the Senate of the fact, and 
this enabled the wiser heads of the Senate to substitute 
for the House resolution a resolution approving my 
action, and in this way the passage of the dangerous 
resolution was avoided.^* 

The resolution in question, it should be added, was 
a joint resolution, and purported to "ratify" the Presi- 
dent's action. The President himself had asked only 
for "ratification and approval" of his course by the 
Senate."' 

3* Op. cit, pp. 1 12-4. 

35 Crandall, p. 462. By the "LaFollette-Furuseth Seamen's 
Act," approved March 4, 1915, the President was directed, "within 
ninety days after the passage of the act, to give notice to foreign 
governments that so much of any treaties as might be in con- 
flict with the provisions of the act would terminate on the ex- 
piration of the periods of notice provided for in such treaties," 
ib., p. 460; 38 Stat. L. 1 164, 1 184. On March 6, 1917, the Supreme 
Court, in U. S. v. Pulaski Co. et al, and other cases (nos. 149- 
162), held that the five per cent tariff discount given to mer- 
chandise imported in American bottoms by the Act of Oct. 3, 



1 14 THE PRESIDENT'S CONTROL 

Two other precedents bearing on the outright abro- 
gation of treaties should be noted. The question of 
regarding the extradition article of the Treaty of 1842 
with Great Britain as void on account of certain acts of 
the British Government was laid before Congress by 
President Grant in a special message dated June 20, 
1876, in the following terms: 

It is for the wisdom of Congress to determine whether 
the article of the treaty relating to extradition is to be 
any longer regarded as obligatory on the Government 
of the United States or as forming part of the supreme 
law of the land. Should the attitude of the British Gov- 
ernment remain unchanged, I shall not, without an ex- 
pression of the wish of Congress that I should do so, 
take any action either in making or granting requisi- 
tions for the surrender of fugitive criminals under the 
Treaty of 1842.^^ 

Three years later Congress passed a bill requiring 
the President to abrogate Articles V and VI of the 
Treaty of 1868 with China. President Hayes vetoed 
it, partly on the ground that "the power of modifying 
an existing treaty is part of the treaty making power 
under the Constitution." At the same time, he also 
wrote : 

The authority of Congress to terminate a treaty with 
a foreign power by expressing the will of the nation no 

1913 (38 Stat. L. 196, ch. 16, § IV, J, subsec. 7) with the proviso 
that "nothing in this subsection shall be so construed as to 
abrogate or in any manner impair or affect the provisions of 
any treaty concluded between the United States and any foreign 
nation," is inoperative so long as the present reciprocity treaties 
with foreign countries remain in force. 
s« Richardson, VII, p. 373. 



OF FOREIGN RELATIONS 115 

longer to adhere to it is as free from controversy under 
our Constitution as is the further proposition that the 
power of making new treaties or modifying existing 
treaties is not lodged by the Constitution in Congress, 
but in the President, by and with the advice and consent 
of the Senate, as shown by the concurrence of two- 
thirds of that body.^^ 

All in all, it appears that legislative precedent, which 
moreover is generally supported by the attitude of the 
Executive, sanctions the proposition that the power 
of terminating the international compacts to which the 
United States is party belongs, as a prerogative of 
sovereignty, to Congress alone. This result no doubt 
transgresses the general principle of the residual power 
of the Executive in foreign relations, but it flows 
naturally, if not inevitably, from the power of Con- 
gress over treaty provisions in their quality as "law 
of the land." Furthermore, by Article I, Section 8, 
Paragraph 10 of the Constitution, Congress has the 
power to "define and punish . . . offenses against the 
Law of Nations," and so, it has been generally held, 
the power to define International Law is general for 
the United States. 

On the other hand, there is clear judicial recognition 
that the President too may validly determine the ques- 
tion whether specific treaty provisions have lapsed. 
The following passage from Justice Lurton's opinion 
in Charlton v. Kelly is pertinent: 

If the attitude of Italy was, as contended, a violation 
of the obligation of the treaty, which, in international 

^Uh., p. 518. 



1 16 THE PRESIDENT'S CONTROL 

law, would have justified the United States in denouncing 
the treaty as no longer obligatory, it did not automatically 
have that effect. If the United States elected not to de- 
clare its abrogation, or come to a rupture, the treaty 
would remain in force. It was only voidable, not void; 
and if the United States should prefer, it might waive 
any breach which in its judgment had occurred and con- 
form to its own obligation as if there had been no such 
breach. . . . That the political branch of the govern- 
ment recognizes the treaty obligation as still existing is 
evidenced by its action in this case. ... The executive 
department having thus elected to waive any right to 
free itself from the obligation to deliver up its own citi- 
zens, it is the plain duty of this court to recognize the 
obligation to surrender the appellant as one imposed by 
the treaty as the supreme law of the land and as afford- 
ing authority for the warrant of extradition.^® 

Since, as I remarked above, the validity of treaty 
provisions as "law of the land'* depends upon their 
binding character as international engagements, it 
seems clearly necessary to attribute some such limited 
power of treaty abrogation, if it may be so called, to 
the President. 

4 — The national Government's power of entering 
into agreements with foreign states is not exhausted 
in treaty making, and there are agreements with such 
states which do not have to be submitted to the Senate 
for its advice and consent. 

These fall into two main orders: first, those of 
which the initiating force is the power of Congress; 
second, those which the President may make in virtue 
either of his diplomatic powers or of his powers as 
Commander-in-Chief of the Army and Navy. 

«« 229 U. S. 447, 473-6. 



OF FOREIGN RELATIONS 117 

Of agreements authorized by Congress and in the 
making of which the President or some designated 
head of department acts simply as the agent of the 
National Legislature, the principal varieties are postal 
conventions, copyright and trade mark conventions, 
and reciprocity agreements. ^^ Thus the Postmaster- 
General was authorized to enter into postal conven- 
tions as early as 1792. Nearly a hundred years later 
Section 3 of the McKinley Tariff Act bestowed author- 
ity upon the President which led to ten reciprocal com- 
mercial arrangements with as many foreign govern- 
ments. The validity of Section 3, however, was soon 
challenged on two grounds: first, that it attempted 
to delegate legislative power unconstitutionally; and 
secondly, that it purported to authorize the President 
to do by himself what he could constitutionally do 
only with the advice and consent of the Senate, that, 
in other words, it invaded the treaty making power. 
The Supreme Court in Field v. Clark*° overruled both 
of these contentions and sustained the provision as 
a measure necessary and proper for carrying out cer- 
tain powers of Congress. 

Turning now to the class of agreements which rests 
on the power of the President alone, we may first 
consider certain ones which he has entered into by 
virtue of his powers as Commander-in-Chief of the 
Army and Navy. One of the earliest conventions of 
this sort was that "reached with Great Britain and 
recorded in notes exchanged at Washington, April 

39 See Crandall, ch. IX. 
*o 143 U. S. 649. 



ii8 THE PRESIDENTS CONTROL 

28-29, 181 7, between Mr. Bagot, the British minister, 
and Mr. Rush, acting Secretary of State," for the 
limitation of naval forces on the Great Lakes. Nearly 
a year later, however, the President seems to have 
had some compunctions as to the regularity of this 
arrangement and so referred it to the Senate, which 
promptly approved it by the necessary two-thirds vote, 
and it has remained in effect ever since.*^ 

In the early '80s the President entered into a series 
of agreements with the Mexican Government, "pro- 
viding reciprocally for the crossing of the international 
boundary line in unpopulated places by the troops of 
the respective countries in close pursuit of savage 
bands of Indians."*^ It is on these agreements that 
President Wilson modelled the protocol submitted to 
the Mexican commissioners last summer at Atlantic 
City, which would have provided for a reciprocal right 
in the two governments to pursue outlaw forces across 
the frontier. The Mexican commissioners refused to 
accept the arrangement. 

Other examples of this species of agreement are 
noted by the Justices in their opinions in Tucker v. 
Alexandroff, where the question of their validity is 
touched upon in rather equivocal terms, as follows : 

While no act of Congress authorizes the executive de- 
partment to permit the introduction of foreign troops, 
the power to give such permission without legislative 
assent was probably assumed to exist from the authority 
of the President as commander-in-chief of the military 
and naval forces of the United States.*^ 

*^ Crandall, pp. 102-3. 

*2 ijj^ pp jo4_^ . Moore, Digest, p. 389 ff. 

*3 183 U. S. 424, 435- 



OF FOREIGN RELATIONS 119 

And again: 

The jurisdiction of every nation within its own terri- 
tory is absolute and exclusive ; by its own consent only 
can any exception to that jurisdiction exist in favor of 
a foreign nation; and any authority in its own courts 
to give effect to such an exception by affirmative action 
must rest upon express treaty or statute. ... It is not 
necessary in this case to consider the full extent of the 
power of the President in such matters,** 

Of a more strictly diplomatic character are the 
agreements which have been entered into by the Presi- 
dent from time to time without the advice and consent 
of the Senate, for the settlement of the pecuniary 
claims of our citizens against foreign governments.*^ 
It appears, however, that no such arrangement has 
ever been entered into for the adjustment of claims 
of aliens against our Government without the pre- 
liminary authorization of an agreement which had 
been submitted to the Senate. 

Then there are numerous devices resorted to in 
ordinary diplomatic correspondence which frequently 
yield what are tantamount to agreements : a mere ex- 
change of notes, such as took place in 1899 and 1900 
between our State Department and the governments 
of Great Britain, France, Germany, Russia, Italy, and 
Japan, with reference to the "Open Door" policy in 
China; an exchange of what are called "identical 
notes," such as took place November 30, 1908, be- 
tween the United States and Japan, whereby the two 
governments pledged their continued fidelity to the 

^^Ib., p. 459. 

*5 Crandall, pp. 108-11. 



I20 THE PRESIDENT'S CONTROL 

maintenance of the integrity of China and of equal 
commercial opportunity throughout the Chinese Em- 
pire for all nationalities; the "gentlemen's agreement," 
a new invention, such as that which at present regu- 
lates Japanese immigration to this country ; and finally, 
the modus vivendi, such as that which for more than 
a quarter of a century, after the termination of the 
Treaty of Washington in 1885, defined American 
fishing rights off the coasts of Canada and New- 
foundland.*^ 

f The question that suggests itself at this point is : 
How, in face of all these devices, is the Senate to be 
assured its due participation in treaty making ?_ When- 
ever it is desirable that an agreement have the force 
of domestic law, the Senate must, ordinarily certainly, 
be resorted to.*'^ Yet again, what executive authority 
has called into existence the same authority may also 
abate. For the rest, however, the criteria seem lack- 
ing for a nice differentiation of the prerogative under 
discussion from the treaty making power, with the 
result that its curtailment, like that of the power of 
the President in appointing "special agents," is a prob- 

*6 See generally Crandall, ch. VIII ; and Moore's Digest, V, 
p. 210 ff. 

47 But if the "agreement" is within the power of the Presi- 
dent and is not in conflict with acts of Congress, it would be 
pleadable like any other executive act done with authority. 
Thus should he, assuming his right to do so, give his consent 
to the passage of foreign troops through the territory of 
a State of the United States, by International Law the domestic 
jurisdiction would not extend to such forces, and to any attempt 
to make it so extend such consent would be a sufficient answer. 



OF FOREIGN RELATIONS 121 

lem of practical statesmanship rather than of Consti- 
tutional Law.*^ 

This was proved most strikingly in the case of the 
agreement which President Roosevelt made in 1905 
with Santo Domingo, for putting the customs houses 
of that island under American control. Mr. Roose- 
velt tells the story of this agreement in his "Auto- 
biography," as follows: 

The Constitution did not explicitly give me power to 
bring about the necessary agreement with Santo Do- 
mingo. But the Constitution did not forbid my doing 
what I did. I put the agreement into effect, and I con- 
tinued its execution for two years before the Senate 
acted ; and I would have continued it until the end of my 
term, if necessary, without any action by Congress. But 
it was far preferable that there should be action by Con- 
gress, so that we might be proceeding under a treaty 
which was the law of the land and not merely by a di- 
rection of the Chief Executive which would lapse when 
that particular Executive left office. I therefore did my 
best to get the Senate to ratify what I had done. There 
was a good deal of difficulty about it. . . . Enough Re- 
publicans were absent to prevent the securing of a two- 
thirds vote for the treaty, and the Senate adjourned 

48 Note the usage of Art. I, Sec. 10, of the Constitution, 
where the States are forbidden absolutely to enter into "any 
treaty, alliance or confederation," and "without the consent of 
Congress" to enter into "any agreement or compact with another 
state or foreign power." A not very successful attempt is made 
to distinguish these terms by Chief Justice Taney, in Holmes v. 
Jennison, 14 Peters 540, 571-2. See also Virginia v. Tennessee, 
148 U. S. 503, where it was held that the consent of Congress 
is not necessary to all compacts or agreements between States 
but only to those "directed to the formation of any combination 
tending to the increase of the political power of the States, 
which may encroach upon or interfere with the just supremacy 
of the United States." 



122 THE PRESIDENT'S CONTROL 

without any action at all, and with the feeling of entire 
self-satisfaction at having left the country in the position 
of assuming a responsibility and then failing to fulfil it. 
Apparently the Senators in question felt that in some 
way they had upheld their dignity. All that they had 
really done was to shirk their duty. Somebody had to 
do that duty, and accordingly I did it. I went ahead 
and administered the proposed treaty anyhow, consider- 
ing it as a simple agreement on the part of the Executive 
which would be converted into a treaty whenever the 
Senate acted. After a couple of years the Senate did 
act, having previously made some utterly unimportant 
changes which I ratified and persuaded Santo Domingo 
to ratify. In all its history Santo Domingo has had 
nothing happen to it as fortunate as this treaty, and the 
passing of it saved the United States from having to face 
serious difficulties with one or more foreign powers." 

In other words, the only important difference be- 
tween the President's "agreement" and the "treaty" 
which superseded it is to be found in the fact that 
the latter was ratified by the Senate, with the result, 
however, of putting affairs on a durable basis. 

And the same point is further illustrated by the dis- 
pute which developed in 1905 between President 
Roosevelt and the Senate over the Hay arbitration 
treaties. The first two articles of these proposed 
treaties read as follows : 

Article I. Differences which may arise of legal na- 
ture, or relating to the interpretation of treaties existing 
between the two contracting parties, and which it may 
not have been possible to settle by diplomacy, shall be 
referred to the permanent court of arbitration established 
at The Hague by the convention of the 29th of July, 
1899, provided, nevertheless, that they do not affect the 

4» Op. cit, pp. 551-2. For the debate in the Senate on this 
matter, see the references in notes 2 and 3, Part III. 



OF FOREIGN RELATIONS 123 

vital interests, the independence or the honor of the two 
contracting States, and do not concern the interests of 
third parties. 

Article II. In each individual case the high contract- 
ing parties, before appealing to the permanent court of 
arbitration, shall conclude a special agreement defining 
clearly the matter in dispute and the scope of the powers 
of the arbitrators, and fixing the periods for the forma- 
tion of the arbitral tribunal and the several stages of 
the procedure.^° 

**In the Senate," to use Professor Willoughby's ac- 
count of the matter, 

objection developed to the provision that the definition 
of the matter in dispute and the fixing of the powers of 
the arbitrators should be "by special agreements," which, 
the terminology would imply, might be entered into, in 
each case, by the President without consulting the Senate. 
That body, therefore, amended the treaty projects by 
substituting the word "Treaty" for the word "Agree- 
ment." The effect of this change was, of course, to make 
it necessary to obtain the approval and consent of the 
Senate to each and every proposition that might there- 
after arise for submitting a dispute to arbitration, even 
when such propositions were clearly within the scope of 
Article I of the treaties which Secretary Hay had ne- 
gotiated. President Roosevelt holding that thus, in any 
event, a special treaty would have to be negotiated and 
approved by the Senate before a matter could be sub- 
mitted to arbitration, declared that the ratification of the 
so-called general arbitration treaties which the Senate had 
amended, would achieve nothing, and declined to submit 
them, as thus amended, to the foreign countries con- 
cerned, for their approval, and the whole project was, 
for the time being at least, abandoned.^^ 

A similar dispute arose in President Taft's adminis- 

^<> Willoughby, Constitutional Law, I, pp. 473-4. 
"76. 



124 THE PRESIDENT'S CONTROL 

tration, which is recounted in his recent volume "The 
Presidency," thus: 

I have been greatly interested in securing the adoption 
of general treaties of arbitration to dispose of all justi- 
ciable questions that are likely to arise between the na- 
tions. I attempted to secure the ratification by the Senate 
of treaties of this kind which I had made with France 
and England. The Senate refused to confirm the treaties 
except with such narrowing amendments that it seemed 
to me futile to attempt to negotiate them. The turning- 
point was whether the Senate had the power to agree 
that all questions of a certain description should be sub- 
mitted to arbitration and to leave to the tribunal of arbi- 
tration the question of jurisdiction under it, that is, the 
issue whether a future controversy involved questions 
within the class. Learned senators contended that this 
would be an invalid delegation of the function of the 
Senate to a tribunal of arbitration. It would not be a 
delegation of the authority of the Senate any more than 
it would be a delegation of the authority of the President, 
because the Senate's function is no more sacred, and no 
more necessary to the making of a treaty, than is the 
function which the President performs. I confess I have 
never been able to appreciate the force of the negative 
argument by the Senate in regard to this matter. The 
question of the jurisdiction of a tribunal to hear a par- 
ticular question and to decide whether the question comes 
within the class of questions over which the treaty gives 
them jurisdiction is a question of the construction of 
a treaty, and the construction of a treaty is one of the 
commonest issues between nations submitted to arbitra- 
tion. The agreement to abide a judgment as to juris- 
diction in future is no more a delegation of control over 
foreign affairs than is an agreement to abide a judg- 
ment of an existing controversy in respect to such rela- 
tions. The narrow view that the Senate has taken in 
this matter is inconsistent with any arbitration at all, and 
it precludes all useful treaties of arbitration in advance 
of the occurrence of the quarrel to be arbitrated. It 



OF FOREIGN RELATIONS 125 

destroys all hope of an international court for the settle- 
ment of international disputes. The position is utterly 
untenable as a question of constitutional law.^^ 

But while the Senate succeeded on these two oc- 
casions in defending its participation in treaty making, 
against what it considered a threatened encroachment, 
it is not always so favorably circumstanced, and our 
final verdict must be that the President's prerogative 
in the making of international compacts of a tem- 
porary nature and not demanding enforcement by the 
courts is one that is likely to become larger before it 
begins to shrink. Two recent executive agreements 
mentioned by Mr. Crandall are much in point in this 
connection : 

The agreement in notes exchanged, April 17, 19 13, 
with the government of Panama, reciprocally permitting 
consuls to take note of declarations of values of exports 
made by shippers before customs officers ; and the ar- 
rangement effected by exchange of notes with the British 
government, September i and September 23, 19 13, for 
extradition, between the Philippine Islands or Guam 
and British North Borneo, of fugitive offenders for of- 
fenses specified in the extradition conventions existing 
between the two countries.^^ 

Judged for the subject matter they deal with, both 
these agreements clearly enter the field of treaty 
making. Finally, the papers informed us on April 10, 
that instead of a "full alliance" "America will have 
a ^gentlemen's agreement' with the Entente." 



^2 op. cit., pp. 102-4. 

^3 Treaties, Their Making and Enforcement, p. 117. 



CHAPTER IV 

Presidential War Making — Political Questions 

I — Presidential initiative in the formulation of our 
foreign policy is a familiar fact. The neutrality of 
1793, the annexation of Louisiana, the Monroe Doc- 
trine, the annexation of Texas, the Mexican War and 
its conquests, the acquisition of Alaska, the peaceful 
settlement of the Alabama claims, the construction of 
an American built and an American owned canal 
across the Isthmus of Panama, the "Big Stick" doc- 
trine, the "Open Door" policy, recent Pan-American- 
ism, and lastly, our entrance into the war against 
German militarism — all these, and many more items of 
the same character, must be set down to the credit of 
executive leadership in the field of foreign relations. 
It is likewise a familiar fact that the ultimate viability 
of an executive policy in this field will depend upon the 
backing of public opinion as reflected in Congress, or in 
the Senate, and not a few Presidential programs have 
had to be abandoned outright or modified because of 
their failure to obtain this backing ; as for instance, Ad- 
ams and Clay's Pan-American policy, Pierce's Cuban 
policy. Grant's Santo Domingo policy, Cleveland's 
Hawaiian policy. Finally, in one or two instances 
Congressional pressure has forced unwelcome policies 
upon a reluctant Executive, the principal examples 

126 



CONTROL OF FOREIGN RELATIONS 127 

being the War of 1812 and the intervention in Cuba 
in 1898. 

We are thus brought to consider a question which 
has been raised at various times, though the answer 
to it seems clear enough; and that is whether, in view 
of the fact that Congress is given the power to declare 
war, the President is under constitutional obligation 
not to incur the risk of war in the prosecution of his 
diplomatic policies. The idea that he is under some 
such obligation was brought forward in the Senate 
in 1826, in opposition to Adams's proposal to send 
envoys to the Panama Congress, but it was very satis- 
factorily answered, I think, by Senator Johnston of 
Louisiana, thus: 

There is nothing peculiar in the present case. The 
President has, at all times, the power to commit the peace 
of this country, and involve us in hostilities, as far as 
he has power in this case. To him is confided all inter- 
course with foreign nations. To his discretion and re- 
sponsibility is intrusted all our delicate and difficult 
relations : all negotiations and all treaties are conducted 
and brought to issue by him. He speaks in the name and 
with the authority of this Government with all the powers 
of Europe. That confidence has never been deceived. 
The character, talent, and public virtue, which placed 
them in that high station, is the guarantee of their con- 
duct. Their own fame, their love of country, make it 
their interest and their duty to cultivate peace, commerce, 
and honest friendship, with all nations: and all the mo- 
tives of self-love and ambition conspire to ensure from 
them, as from us, a faithful discharge of the trust con- 
fided to them by the constitution and the country. But 
there must be confidence. No Government can exist 
without it. And this distrust and jealousy of the Execu- 
tive will destroy all power to do good, and all power to 
act efficiently.^ 

^Benton, VIII, p. 439. 



128 THE PRESIDENT'S CONTROL 

The same question was again raised in 1844 by the 
opponents of Tyler's treaty for the annexation of 
Texas, which, they asserted, was calculated to bring 
on war with Mexico. On this occasion Senator Benton 
of Missouri introduced the following resolutions : 

Resolved, That the ratification of the treaty for the 
annexation of Texas to the United States would be an 
adoption of the Texian war with Mexico by the United 
States, and would devolve its conduct and conclusion 
upon the said United States. 

Resolved, That the treaty-making power does not ex- 
tend to the power of making war, and that the President 
and Senate have no right to make war, either by declara- 
tion or adoption.- 

Walker of Mississippi defended the President's 
course thus: 

An avowed purpose to make a war, without any actual 
conflict, or any means prepared to conduct it, is declared 
to be conclusive against the ratification of the treaty. If 
this be so, this state of things may be perpetual. I con- 
sider the grounds assumed in opposition to this treaty 
as utterly unfounded in fact; and as derogatory to the 
dignity, and dangerous to the peace and safety, of the 
American people. I consider them deeply injurious to 
our vital interests at this moment, and of most evil ex- 
ample in all time to come. I consider them as ground- 
less objections, operating only for the benefit of foreign 
powers, and especially of England and Mexico ; and as 
abandoning the rights and interests of our own country. 
I consider them as stripping this nation of many of the 
vital attributes of sovereign power, inflicting upon her 
fearful injuries at this period, and, if adopted as prece- 
dents, subjecting us, in all time to come, to great sacri- 
fices and imminent perils. It is to take up the exploded 
doctrine of a paper blockade, so long and arrogantly 

2 Globe, XIII, Appendix, p. 474. 



OF FOREIGN RELATIONS 129 

maintained by England, and apply it in a manner still 
more injurious to our interests, to paper conflicts upon 
the land. The doctrine of England was, that a paper 
blockade announced by a British order in council, was 
decisive against the rights of neutral powers. And now, 
the doctrine is, that a war upon paper, existing only in 
threats and proclamations, is equivalent to an actual con- 
test, in its effects and consequences upon a neutral power. 
. . . The treaty neither makes nor adopts a war, nor 
does it give just cause of war. That war may be pro- 
claimed by Mexico against us, if the treaty is ratified, 
is a possible event. But has it come to this, that the 
treaty power is expunged from the constitution, or can 
never be exercised, because, if we ratify a treaty, how- 
ever just, or expedient, or necessary, we may be threat- 
ened with war, or it may follow as a consequence? If 
so, the most powerful or the most insignificant nation 
has only to threaten us with a war, as a consequence of 
the ratification of a treaty, and the treaty-making power 
expires, or must not be exercised; and the same conse- 
quences would flow from this doctrine, if we were threat- 
ened with war as the result of a refusal to ratify a treaty, 
and would compel us to sanction it by our votes. The 
moral right, and the constitutional power of the Senate 
to ratify or reject a treaty, does not depend upon the 
fact, whether a war may or may not follow directly as 
a consequence. We all know that neither the President 
nor the Senate, nor both combined, can declare war. 
Nor is it in the power of logic or metaphysics to make it 
appear that the ratification of this treaty is a declaration 
of war. It is true that, as a consequence of this act, 
Mexico may declare war against us ; but even then, there 
would be no war on our part, until it was declared by 
Congress.^ 

The treaty was defeated and Texas was eventually 
annexed by joint resolution, but this was due rather 
to Tyler's unpopularity than to Benton's argument. 

^Ib., p. 552. The question raised by the last sentence of the 
above quotation is discussed in Section 2 of this chapter. 



I30 THE PRESIDENT'S CONTROL 

In more recent years the same point was raised in 
connection with President Cleveland's intervention in 
the British- Venezuelan boundary dispute, in 1897. On 
this occasion Senator Sewell of New Jersey offered 
a series of resolutions, one of which declared that: 

Neither Congress nor the country can be or has been 
committed by the action or position of the Executive 
Department in reference to the Venezuelan boundary 
controversy, as to the course to be pursued when the time 
shall have arrived for a final determination.* 

Answering this resolution and Sewell's declaration 
in support of it, that the President has not the right 
to commit the United States to war, Senator Daniel 
of Virginia said: 

That the Executive could not commit Congress or the 
country by his action is readily admitted. But it may as 
well be stated at the same time that the country has never 
refused yet in all its history to stand by a President who 
was guarding its rights and interests.^ 

This very justifiable conclusion is paralleled by Pro- 
fessor Pomeroy in his work on "Constitutional Law," 
thus: 

The President cannot declare war; Congress alone 
possesses this attribute. But the President may, without 
any possibility of hindrance from the legislature, so con- 
duct the foreign intercourse, the diplomatic negotiations 
with other governments, as to force a war, as to compel 
another nation to take the initiative; and that step once 
taken, the challenge cannot be refused. How easily 
might the Executive have plunged us into a war with 
Great Britain by a single despatch in answer to the affair 

^Record, 54 Cong., i Sess., p. ^26, 786-7. 
^Ih., p. 912. 



OF FOREIGN RELATIONS 131 

of the Trent. How easily might he have provoked a 
condition of active hostilities with France by the form 
and character of the reclamations made in regard to the 
occupation of Mexico. 

I repeat that the Executive Department, by means of 
this branch of its power over foreign relations, holds in 
its keeping the safety, welfare, and even permanence of 
our internal and domestic institutions. And in wielding 
this power, it is untrammelled by any other department 
of the government; no other influence than a moral one 
can control or curb it; its acts are political, and its re- 
sponsibility is only political.^ 

2 — But as between the right to incur a possible risk 
of war and a right to perform acts of war without 
Congressional authorization, there is an obvious dif- 
ference. We now pass to the question whether the 
President, by virtue not only of his diplomatic powers 
but also of his power as Commander-in-Chief of the 
Army and Navy, ever has the latter right. The ques- 
tion has been raised in three classes of instances, which 
may be discussed seriatim: first, where the precise 
question was as to the power of the President to recog- 
nize a state of war as resulting from the acts of some 
other power, and to take measures accordingly; sec- 
ondly, where the question was as to his right to take 
measures which were technically acts of war, in pro- 
tection of American rights abroad; thirdly, where the 
question was as to his right to take similar measures 
in protection of certain "inchoate" national interests 
abroad, interests arising out of a pending treaty or 
a diplomatic policy. 

The question as to the President's power to recog- 

« Op. cit, p. 565- 



132 THE PRESIDENT'S CONTROL 

nize a state of war in consequence of the hostile acts 
of another power was first raised in Jefferson's Mes- 
sage of December 8, 1801 : 

Tripoli, the least considerable of the Barbary States, 
had come forward with demands unfounded either in 
right or in compact, and had permitted itself to denounce 
war on our failure to comply before a given day. The 
style of the demand admitted but one answer. I sent 
a small squadron of frigates into the Mediterranean, with 
assurances to that power of our sincere desire to remain 
in peace, but with orders to protect our commerce against 
the threatened attack. The measure was seasonable and 
salutary. The Bey had already declared war. His 
cruisers were out. Two had arrived at Gibraltar. Our 
commerce in the Mediterranean was blockaded and that 
of the Atlantic in peril. The arrival of our squadron 
dispelled the danger. One of the Tripolitan cruisers 
having fallen in with and engaged the small schooner 
Enterprise, commanded by Lieutenant Sterret, which had 
gone as a tender to our larger vessels, was captured, 
after a heavy slaughter of her men, without the loss of 
a^ single one on our part. The bravery exhibited by our 
citizens on that element will, I trust, be a testimony to 
the world that it is not the want of that virtue which 
makes us seek their peace, but a conscientious desire to 
direct the energies of our nation to the multiplication of 
the human race, and not to its destruction. Unauthorized 
by the Constitution, without the sanction of Congress, to 
go beyond the line of defense, the vessel, being disabled 
from committing further hostilities was liberated with 
its crew. The Legislature will doubtless consider whether, 
by authorizing measures of offense also, they will place 
our force on an equal footing with that of its adversaries. 
I communicate all material information on this subject, 
that in the exercise of this important function confided 
by the Constitution to the Legislature exclusively their 
judgment may form itself on a knowledge and considera- 
tion of every circumstance of wei^ht.^ 

■^ Richardson, I, pp. 326-7. 



OF FOREIGN RELATIONS 133 

This characteristic Jeffersonian passage betwixt the 
Scylla and Charybdis of Tweedledum and Tweedledee 
aroused the ire of Hamilton, who, writing over the 
pseudonym of ''Lucius Crassus," attacked it in the 
following strain : 

The first thing in it, which excites our surprise, is the 
very extraordinary position, that though Tripoli had de- 
clared war in form against the United States, and had 
enforced it by actual hostility, yet that there was not 
power, for want of the sanction of Congress, to capture 
and detain her crews. 

When the newspapers informed us that one of these 
cruisers, after being subdued in a bloody conflict, had 
been liberated and permitted quietly to return home, the 
imagination was perplexed to divine the reason. The 
conjecture naturally was, that pursuing a policy too re- 
fined perhaps for barbarians, it was intended, by that 
measure, to give the enemy a strong impression of our 
magnanimity and humanity. No one dreamt of a scruple 
as to the right to seize and detain the armed vessel of 
an open and avowed foe, vanquished in battle. The 
enigma is now solved, and we are presented with one 
of the most singular paradoxes ever advanced by a man 
claiming the character of a statesman. When analyzed, 
it amounts to nothing less than this, that between two 
nations there may exist a state of complete war on the 
one side — of peace on the other. 

• War, of itself, gives to the parties a mutual right to 
kill in battle, and to capture the persons and property 
of each other. This is a rule of natural law ; a necessary 
and inevitable consequence of the state of war. This 
state between two nations is completely produced by the 
act of one — it requires no concurrent act of the other. 
It is impossible to conceive the idea, that one nation can 
be in full war with another, and this other not in the 
same state with respect to its adversary. The moment 
that two nations are, in an absolute sense, at war, the 
public force of each may exercise every act of hostility, 
which the general laws of war authorize, against the 



134 THE PRESIDENT'S CONTROL 

persons and property of the other. As respects this con- 
clusion, the distinction between offensive and defensive 
war makes no difference. That distinction is only ma- 
terial to discriminate the aggressing nation from that 
which defends itself against attack. — The war is offensive 
on the part of the state which makes it ; on the opposite 
side it is defensive: but the rights of both, as to the 
measure of hostility, are equal. 

It will be readily allowed, that the constitution of a 
particular country may limit the organ, charged with the 
direction of the public force, in the use or application 
of that force, even in time of actual war: but nothing 
short of the strongest negative words, of the most ex- 
press prohibitions, can be admitted to restrain that organ 
from so employing it, as to derive the fruits of actual 
victory, by making prisoners of the persons and detain- 
ing the property of a vanquished enemy. Our Constitu- 
tion, happily, is not chargeable with so great an absurdity. 
The framers of it would have blushed at a provision, 
so repugnant to good sense, so inconsistent with national 
safety and convenience. That instrument has only pro- 
vided affirmatively, that, 'The Congress shall have power 
to declare War"; the plain meaning of which is, that it 
is the peculiar and exclusive province of Congress, when 
the nation is at peace to change that state into a state 
of war; whether from calculations of policy, or from 
provocations, or injuries received: in other words, it be- 
longs to Congress only, to go to War. But when a for- 
eign nation declares, or openly and avowedly makes war 
upon the United States, they are then by the very fact 
already at war, and any declaration on the part of Con- 
gress is nugatory; it is at least unnecessary. This in- 
ference is clear in principle, and has the sanction of 
established practice. It is clear in principle, because it 
is self-evident, that a declaration by one nation against 
another, produces at once a complete state of war be- 
tween both; and that no declaration on the other side 
can at all vary their relative situation; and in practice, 
it is well known, that nothing is more common than when 
war is declared by one party, to prosecute mutual hos- 
tilities without a declaration by the other. 



OF FOREIGN RELATIONS 135 

The doctrine of the Message includes the strange ab- 
surdity, that without a declaration of war by Congress, 
our public force may destroy the life, but may not re- 
strain the liberty, or seize the property of an enemy. 
This was exemplified in the very instance of the Tripoli- 
tan corsair. A number of her crew were slaughtered in 
the combat, and after she was subdued, she was set free 
with the remainder. But it may perhaps he said, that 
she was the assailant, and that resistance was an act of 
mere defence and self-preservation. Let us then pursue 
the matter a step further. Our ships had blockaded the 
Tripolitan Admiral in the Bay of Gibraltar; suppose he 
had attempted to make his way out, without first firing 
upon them; if permitted to do it, the blockade was a 
farce; if hindered by force, this would have amounted 
to more than a mere act of defence: and if a combat had 
ensued, we should then have seen a perfect illustration 
of the unintelligible right, to take the life but not to 
abridge the liberty, or capture the property of an enemy. 
Let us suppose an invasion of our territory, previous to 
a declaration of war by Congress. The principle avowed 
in the Message, would authorize our troops to kill those 
of the invader, if they should come within reach of their 
bayonets, perhaps to drive them into the sea, and drown 
them; but not to disable them from doing harm, by the 
milder process of making them prisoners, and sending 
them into confinement. Perhaps it may be replied, that 
the same end would be answered by disarming, and leav- 
ing them to starve. The merit of such an argument 
would be complete by adding, that should they not be 
famished, before the arrival of their ships with a fresh 
supply of arms, we might then, if able, disarm them a 
second time, and send them on board their fleet, to return 
safely home. . . . 

Who could restrain the laugh of derision at positions 
so preposterous, were it not for the reflection that in 
the first magistrate of our country, they cast a blemish 
on our national character? What will the world think 
of the fold when such is the shepherd?^ 

8 Works, VII, pp. 745-8. 



136 THE PRESIDENT'S CONTROL 

The same question was brought up again forty-five 
years later, when President Polk, in his Message of 
May II, 1846, wrote: 

After reiterated menaces, Mexico has passed the 
boundary of the United States, has invaded our terri- 
tory and shed American blood upon the American soil. 
She has proclaimed that hostilities have commenced, and 
that the two nations are now at war. 

As war exists, and, notwithstanding all our efforts to 
avoid it, exists by the act of Mexico herself, we are called 
upon by every consideration of duty and patriotism to 
vindicate with decision the honor, the rights, and the 
interests of our country. 

In further vindication of our rights and defense of 
our territory, I invoke the prompt action of Congress to 
recognize the existence of the war, and to place at the 
disposition of the Executive the means of prosecuting 
the war with vigor, and thus hastening the restoration 
of peace.® 

When this message reached the Senate the portion 
of it just quoted was at once assailed by Calhoun, on 
the ground that, 

in the sense of the constitution war could be declared 
only by Congress; that it was only through the exercise 
of the authority of Congress that that state of things 
called "war" could be announced to the country and the 
world. . . . [He] said he would now appeal to the Sen- 
ate, and ask if there was a man there who could believe, 
on the only document which they had — how authentic he 
knew not — that there existed war, in its proper and con- 
stitutional form, between the two countries? War must 
be made by the sovereign authority, which, in this case, 
were the Mexican Congress, on the one side, and the 
American Congress, on the other. The President of 
Mexico could not make war. It could only be done by 

^ Richardson, IV, pp. 442-3. 



OF FOREIGN RELATIONS 137 

the two countries. Even if the two Presidents had de- 
clared war, the nations could disavow the act; and he 
called on the Senate to reflect upon the position in which 
they would be placed in case they made a declaration of 
war, and in due course of time there should come a dis- 
avowal on the part of Mexico/*^ 

Cass of Michigan joined issue with Calhoun on the 
constitutional question, as follovv^s: 

There can be no hostilities undertaken by a govern- 
ment which do not constitute a state of war. War is a 
fact, sir, created by an effort made by one nation to in- 
jure another. One party may make a war, though it 
requires two parties to make a peace. The Senator from 
South Carolina contends that as Congress alone have a 
right, by the constitution, to declare a war, therefore 
there can be no war till it is thus declared. There is 
here a very obvious error. It is certain that Congress 
alone has the right to declare war. That is, there is no 
other authority in the United States, which, on our part, 
can change the relations of peace with another country 
into those of war. No authority but Congress can com- 
mence an aggressive war. But another country can 
commence a war against us without the co-operation of 
Congress. Another country can, at its pleasure, termi- 
nate the relations of peace with us, and substitute for 
these the relations of war, with their legitimate conse- 
quences. War may be commenced with or without a 
previous declaration. It may be commenced by a mani- 
festo announcing the fact to the world, or by hostile 
attacks by land or sea. The honorable Senator from 
Virginia (Mr. Pennybacker) has well stated the modern 
practice of nations on this subject. He has referred both 
to facts and authorities, showing that acts of hostility, 
with or without a public declaration, constitute a state 
of war. It was thus the war of 1756 was commenced. 
It was thus, I believe, was commenced the war between 
England and France during our Revolution. The peace 

10 Benton, XV, pp. 491, 5oo- 



138 THE PRESIDENT'S CONTROL 

of Amiens was terminated by an act of hostility, and 
not by a public manifesto. The capture of the Danish 
fleet was preceded by no declaration of the intentions of 
the British Government. Our own war of 1812 was de- 
clared on the i8th of June. The manifesto of the Prince 
Regent declaring war against us, was not issued till Jan- 
uary 10, 1813. And yet long before that our borders 
had been penetrated in many directions, an army had 
been subdued and captured, and the whole territory of 
Michigan had been overrun and seized. All these facts 
prove conclusively that it is a state of hostilities that 
produces war, and not any formal declaration. Any 
other construction would lead to this practical absurdity. 
England, for instance, by an act of hostility or by a 
public declaration, announces that she is at war with us. 
If the view, presented by the honorable Senator from 
South Carolina, is correct, we are not at war with her 
till Congress has acted upon the subject. One party, 
then, is at war, while the other is at peace; or, at any 
rate, in this new intermediate state of hostilities, before 
unknown to the world. Now, sir, it is very clear that 
Mexico is at war with us, we at war with her. If she 
terminates the peaceful relations between two countries, 
they are terminated whether we consent or not. The 
new state of things thus created, does not depend upon 
the will of Congress. The two nations are at war, be- 
cause one of them has chosen to place them both in that 
attitude." 

The same question was raised again by President 
Lincoln's action in proclaiming a blockade of the 
Southern ports in April, 1861, without awaiting the 
sanction of Congress, which was then not in session. 
Blockade is known to International Law only as an 
incident of public war, and so when some British ves- 
sels were captured on the ground that they were at- 
tempting an infraction of the blockade which had been 

"/&., p. 503. 



OF FOREIGN RELATIONS 139 

proclaimed by the President, it became necessary for 
the courts to determine the validity of this blockade. 
Sustaining the President's action, the majority opinion 
of the Supreme Court, written by Justice Grier, said : 

By the Constitution, Congress alone has the power to 
declare a national or foreign war. It cannot declare war 
against a State, or any number of States, by virtue of 
any clause in the Constitution. The Constitution confers 
on the President the whole Executive power. He is 
bound to take care that the laws be faithfully executed. 
He is Commander-in-Chief of the Army and Navy of 
the United States, and of the militia of the several States 
when called into the actual service of the United States. 
He has no power to initiate or declare a war either 
against a foreign nation or a domestic State. But by the 
Acts of Congress of February 28, 1795, and 3d of March, 
1807, he is authorized to call out the militia and use the 
military and naval forces of the United States in case 
of invasion by foreign nations, and to suppress insur- 
rection against the government of a State or of the 
United States. 

If a war be made by invasion of a foreign nation, the 
President is not only authorized but bound to resist force 
by force. He does not initiate the war, but is bound to 
accept the challenge without waiting for any special legis- 
lative authority. And whether the hostile party be a 
foreign invader, or States organized in rebellion, it is 
none the less a war, although the declaration of it be 
"unilateral." Lord Stowell (i Dodson, 247) observes, 
"It is not the less a war on that account, for war may 
exist without a declaration on either side. It is so laid 
down by the best writers on the law of nations. A 
declaration of war by one country only, is not a mere 
challenge to be accepted or refused at pleasure by the 
other." 

The battles of Palo Alto and Resaca de la Palma had 
been fought before the passage of the Act of Congress 
of May 13, 1846, which recognized "a state of war as 



I40 THE PRESIDENT'S CONTROL 

existing by the act of the Republic of Mexico." This 
act not only provided for the future prosecution of the 
war, but was itself a vindication and ratification of the 
Act of the President in accepting the challenge without 
a previous formal declaration of war by Congress. 

This greatest of civil wars was not gradually developed 
by popular commotion, tumultuous assemblies, or local 
unorganized insurrections. However long may have been 
its previous conception, it nevertheless sprung forth sud- 
denly from the parent brain, a Minerva in the full 
panoply of war. The President was bound to meet it in 
the shape it presented itself, without waiting for Con- 
gress to baptize it with a name ; and no name given to it 
by him or them could change the fact. . . . 

Whether the President, in fulfilling his duties as Com- 
mander-in-Chief in suppressing an insurrection, has met 
with such armed hostile resistance, and a civil war of 
such alarming proportions, as will compel him to accord 
to them the character of belligerents, is a question to 
be decided by him, and this Court must be governed by 
the decision and acts of the political department of the 
Government to which this power was intrusted. "He 
must determine what degree of force the crisis demands." 
The proclamation of blockade is itself official and con- 
clusive evidence to the Court that a state of war existed 
which demanded and authorized a recourse to such a 
measure, under the circumstances peculiar to the case.^^ 

A powerful minority of the Court for whom Justice 
Nelson spoke argued that only a declaration by Con- 
gress could produce a status of war for the United 
States.^^ It should be noticed, too, that all so-called 
^'declarations of war" by Congress have adhered to 
the form followed in the first of them, that of 1812, 
v^hich was phrased as follows : 

^2 2 Black 635, 668. See also Dana's argument, ib., pp. 659-60. 
^^IK p. 688 ff. 



OF FOREIGN RELATIONS 141 

Whereas war in fact now exists 'between Great Britain 
and the United States, be it therefore enacted that the 
President of the United States be and he is hereby au- 
thorized to carry on the same with the forces of the 
nation both by sea and land and to grant letters of 
marque and reprisal/* 

In his War Message of April 2 President Wilson 
conforms to this precedent. He advised that 

the Congress declare the recent course of the German 
Government to be, in fact, nothing less than war against 
the Government of the United States; that it formally 
accept the status of belligerent which has thus been thrust 
upon it, and that it take immediate steps, not only to put 
the country in a more thorough state of defense, but also 
to exert all its power and employ all its resources to 
bring the Government of the German Empire to terms 
and end the war/^ 

It thus appears that the power of Congress to de- 
clare war has in actual exercise been the power to 
recognize an existing state of war, but that the Presi- 
dent alone may also exercise this power, at least in the 
case of invasion or of insurrection. The question 
possibly remains whether the President may recognize 
a foreign war not attended by invasion of American 
territory, and by his act produce the juridical results 
of a status of war, namely, the legalization of block- 
ades at International Law, the termination of treaties 
with the other belligerent, the closing of the courts 
to the citizens or subjects of the other belligerent, etc. 

1* The act was entitled "An Act declaring War between Great 
Britain and her Dependencies, and the United States and Their 
Territories," Benton, IV, p. 560. 

^^ New York Times, Apr. 8, 1917. 



142 THE PRESIDENT'S CONTROL 

The lines of reasoning employed in the Prize Cases 
would seem to answer this question affirmatively. 

3 — But not only may the President "recognize" a 
state of war in certain cases, he may also, at least in 
the absence of restrictive legislation, employ the forces 
of the United States to perform what are technically 
acts of war in protection of American rights abroad. 
A famous instance in this connection is the case of 
Martin Koszta, which is referred to by the United 
States Supreme Court in the Neagle case, above cited, 
in the following terms : 

One of the most remarkable episodes in the history of 
our foreign relations, and which has become an attractive 
historical incident, is the case of Martin Koszta, a native 
of Hungary, who, though not fully a naturalized citizen 
of the United States, had in due form of law made his 
declaration of intention to become a citizen. While in 
Smyrna he was seized by command of the Austrian con- 
sul-general at that place, and carried on board the Hussar, 
an Austrian vessel, where he was held in close confine- 
ment. Captain Ingraham, in command of the American 
sloop-of-war St. Louis, arriving in port at that critical 
period, and ascertaining that Koszta had with him his 
naturalization papers, demanded his surrender to him, 
and was compelled to train his guns upon the Austrian 
vessel before his demands were complied with. It was, 
however, to prevent bloodshed, agreed that Koszta should 
be placed in the hands of the French consul subject to 
the result of diplomatic negotiations between Austria and 
the United States. The celebrated correspondence be- 
tween Mr. Marcy, Secretary of State, and Chevalier 
Hiilsemann, the Austrian minister at Washington, which 
arose out of this affair and resulted in the release and 
restoration to liberty of Koszta, attracted a great deal 
of public attention, and the position assumed by Mr. 
Marcy met the approval of the country and of Congress, 



OF FOREIGN RELATIONS 143 

who voted a gold medal to Captain Ingraham for his 
conduct in the affair. Upon what act of Congress then 
existing can any one lay his finger in support of the 
action of our government in this matter ?^^ 

The date of this episode was 1853. A year later 
occurred the bombardment of Grey town, Nicaragua, 
by Lieutenant Hollins of the U. S. S. Cyane, in de- 
fault of reparation which Hollins had demanded from 
the local authorities for an attack by a mob on the 
United States consul. HoUins's action was defended 
by President Pierce in his annual Message of this year 
without reference to the constitutional question: 

When the Cyane was ordered to Central America, it 
was confidently hoped and expected that no occasion 
would arise for "a. resort to violence and destruction of 
property and loss of life." Instructions to that effect 
were given to her commander ; and no extreme act would 
have been requisite had not the people themselves, by 
their extraordinary conduct in the affair, frustrated all 
the possible mild measures for obtaining satisfaction. A 
withdrawal from the place, the object of his visit en- 
tirely defeated, would under the circumstances in which 
the commander of the Cyane found himself have been 
absolute abandonment of all claim of our citizens for 
indemnification and submissive acquiescence in national 
indignity. It would have encouraged in these lawless 
men a spirit of insolence and rapine most dangerous to 
the lives and property of our citizens at Punta Arenas, 
and probably emboldened them to grasp at the treasures 
and valuable merchandise continually passing over the 
Nicaragua route. It certainly would have been most 
satisfactory to me if the objects of the Cyane's mission 
could have been consummated without any act of public 
force, but the arrogant contumacy of the offenders ren- 

^6 135 u. S. I, 64. 



144 THE PRESIDENT'S CONTROL 

dered it impossible to avoid the alternative either to break 
up their establishment or to leave them impressed with 
the idea that they might persevere with impunity in a 
career of insolence and plunder/^ 

Five or six years later, upon his return to the United 
States, Hollins was sued in the lower Federal Court 
by one Durand for the value of property which had 
been destroyed in the bombardment. His defense was 
based upon the orders of the President and Secretary 
of Navy, and he was entirely vindicated by Justice 
Nelson, who said: 

As the Executive head of the nation, the President is 
made the only legitimate organ of the General Govern- 
ment, to open and carry on correspondence or negotia- 
tions with foreign nations, in matters concerning the 
interests of the country or of its citizens. It is to him, 
also, the citizens abroad must look for protection of per- 
son and of property, and for the faithful execution of 
the laws existing and intended for their protection. For 
this purpose, the whole Executive power of the country 
is placed in his hands, under the Constitution, and the 
laws passed in pursuance thereof; and different Depart- 
ments of government have been organized, through which 
this power may be most conveniently executed, whether 
by negotiation or by force — a Department of State and 
a Department of the Navy. 

Now, as respects the interposition of the Executive 
abroad, for the protection of the lives or property of the 
citizen, the duty must, of necessity, rest in the discretion 
of the President. Acts of lawless violence, or of threat- 
ened violence to the citizen or his property, cannot be 
anticipated and provided for; and the protection, to be 
effectual or of any avail, may, not unfrequently, require 
the most prompt and decided action. Under our system 
of Government, the citizen abroad is as much entitled 

'^'^ Richardson, V, p. 284. 



OF FOREIGN RELATIONS 145 

to protection as the citizen at home. The great object 
and duty of Government is the protection of the Uves, 
liberty, and property of the people composing it, whether 
abroad or at home; and any Government failing in the 
accomplishment of the object, or the performance of the 
duty, is not worth preserving.^^ 

During Buchanan's administration the power of the 
President in the field under survey was brought under 
discussion repeatedly. In his Message of December, 
1858, he refers to the situation then existing in China, 
as follows: 

You were informed by my last annual message that 
our minister had been instructed to occupy a neutral 
position in the hostilities conducted by Great Britain and 
France against Canton. He was, however, at the same 
time directed to cooperate cordially with the British and 
French ministers in all peaceful measures to secure by 
treaty those just concessions to foreign commerce which 
the nations of the world had a right to demand. It was 
impossible for me to proceed further than this on my 
own authority without usurping the war-making power, 
which under the Constitution belongs exclusively to 
Congress. 

Besides, after a careful examination of the nature and 
extent of our grievances, I did not believe they were of 
such a pressing and aggravated character as would have 
justified Congress in declaring war against the Chinese 
Empire without first making another earnest attempt to 
adjust them by peaceful negotiation. I was the more 
inclined to this opinion because of the severe chastise- 
ment which had then but recently been inflicted upon the 
Chinese by our squadron in the capture and destruction 
of the Barrier forts to avenge an alleged insult to our 
flag.^^ 

18 4 Blatchford 451, 454. 

19 Richardson V„ p. 506. 



146 THE PRESIDENT'S CONTROL 

The attack by our vessels on the Barrier forts here 
referred to was without Congressional authorization; 
yet Buchanan apparently regards it as having been 
allowable. His point of view is made somewhat 
clearer by the following extract from a note of Mr. 
Cass, then Secretary of State, to Lord Napier, the 
British minister at Washington, which is dated April 
lo, 1857: 

This proposition, looking to a participation by the 
United States in the existing hostilities against China, 
makes it proper to remind your lordship that, under the 
Constitution of the United States, the executive branch 
of this Government is not the war making power. The 
exercise of that great attribute of sovereignty is vested 
in Congress, and the President has no authority to order 
aggressive hostilities to be undertaken. 

Our naval officers have the right — it is their duty, in- 
deed — ^to employ the forces under their command, not 
only in self-defense, but for the protection of the persons 
and property of our citizens when exposed to acts of 
lawless outrage, and this they have done both in China 
and elsewhere, and will do again when necessary. But 
military expeditions into the Chinese territory can not 
be undertaken without the authority of the National 
Legislature.^^ 

In this same message of December, 1858, Buchanan 
also refers to "the claim on the part of Great Britain 
forceably to visit American vessels on the high seas 
in time of peace," and the despatch of a naval force 
to Cuban waters with directions "to protect all vessels 
of the United States on the high seas from search or 
detention by the vessels of war of any other nation." 

The distinction here seems to be between "aggres- 

20 Moore's Digest, VII, p. 164. 



OF FOREIGN RELATIONS 147 

sive'* and "defensive" action, yet when he wished to 
protect American citizens in the interior of Nicaragua, 
Mexico, and New Grenada, and in their rights of 
transit across the Isthmuses of Panama and Tehuante- 
pec, Buchanan thought it necessary to appeal to Con- 
gress and placed the necessity on constitutional 
grounds. Thus, in a special message, dated February 
18, 1859, he wrote as follows: 

The Republics south of the United States on this conti- 
nent have, unfortunately, been frequently in a state of 
revolution and civil war ever since they achieved their 
independence. As one or the other party has prevailed 
and obtained possession of the ports open to foreign 
commerce, they have seized and confiscated American 
vessels and their cargoes in an arbitrary and lawless 
manner and exacted money from American citizens by 
forced loans and other violent proceedings to enable them 
to carry on hostilities. The executive governments of 
Great Britain, France, and other countries, possessing 
the war-making power, can promptly employ the neces- 
sary means to enforce immediate redress for similar out- 
rages upon their subjects. Not so the executive govern- 
ment of the United States. 

If the President orders a vessel of war to any of these 
ports to demand prompt redress for outrages committed, 
the offending parties are well aware that in case of re- 
fusal the commander can do no more than remonstrate. 
He can resort to no hostile act. The question must then 
be referred to diplomacy, and in many cases adequate 
redress can never be obtained. Thus American citizens 
are deprived of the same protection under the flag of 
their country which the subjects of other nations enjoy. 
The remedy for this state of things can only be supplied 
by Congress, since the Constitution has confided to that 
body alone the power to make war. Without the author- 
ity of Congress the Executive can not lawfully direct 
any force, however near it may be to the scene of diffi- 



148 THE PRESIDENT'S CONTROL 

culty, to enter the territory of Mexico, Nicaragua, or 
New Granada for the purpose of defending the persons 
and property of American citizens, even though they 
may be violently assailed whilst passing in peaceful 
transit over the Tehauntepec, Nicaragua, or Panama 
routes. He can not, without transcending his constitu- 
tional power, direct a gun to be fired into a port or land 
a seaman or marine to protect the lives of our country- 
men on shore or to obtain redress for a recent outrage 
on their property. The banditti which infest our neigh- 
boring Republic of Mexico, always claiming to belong 
to one or the other of the hostile parties, might make 
a sudden descent on Vera Cruz or on the Tehauntepec 
route, and he would have no power to employ the force 
on shipboard in the vicinity for their relief, either to 
prevent the plunder of our merchants or the destruction 
of the transit. 

In reference to countries where the local authorities 
are strong enough to enforce the laws, the difficulty here 
indicated can seldom happen; but where this is not the 
case and the local authorities do not possess the physical 
power, even if they possess the will, to protect our citi- 
zens within their limits recent experience has shown that 
the American Executive should itself be authorized to 
render this protection. Such a grant of authority, thus 
limited in its extent, could in no just sense be regarded 
as a transfer of the war-making power to the Executive, 
but only as an appropriate exercise of that power by the 
body to whom it exclusively belongs. The riot at Panama 
in 1856, in which a great number of our citizens lost 
their lives, furnishes a pointed illustration of the neces- 
sity which may arise for the exertion of this authority. 

I therefore earnestly recommend to Congress, on whom 
the responsibility exclusively rests, to pass a law before 
their adjournment conferring on the President the power 
to protect the lives and property of American citizens 
in the cases which I have indicated, under such restric- 
tions and conditions as they may deem advisable. The 
knowledge that such a law exists would of itself go far 
to prevent the outrages which it is intended to redress 
and to render the employment of force unnecessary. 



OF FOREIGN RELATIONS 149 

Without this the President may be placed in a painful 
position before the meeting of the next Congress. In 
the present disturbed condition of Mexico and one or 
more of the other Republics south of us, no person can 
foresee what occurrences may take place before that 
period. In case of emergency, our citizens, seeing that 
they do not enjoy the same protection with subjects of 
European Governments, will have just cause to com- 
plain. On the other hand, should the Executive inter- 
pose, and especially should the result prove disastrous 
and valuable lives be lost, he might subject himself to 
severe censure for having assumed a power not confided 
to him by the Constitution. It is to guard against this 
contingency that I now appeal to Congress.^^ 

But not only did Congress not comply with the re- 
quest, but it was argued that it could not do so validly. 
I quote from the Message of December, 1859, where 
the objection is stated and answered by the President, 
as follows: 

The chief objection urged against the grant of this 
authority is that Congress by conferring it would violate 
the Constitution ; that it would be a transfer of the war- 
making, or, strictly speaking, the war-declaring, power 
to the Executive. If this were well founded, it would, 
of course, be conclusive. A very brief examination, 
however, will place this objection at rest. 

Congress possess the sole and exclusive power under 
the Constitution "to declare war." They alone can "raise 
and support armies'' and "provide and maintain a navy." 
But after Congress shall have declared war and provided 
the force necessary to carry it on the President, as Com- 
mander in Chief of the Army and Navy, can alone em- 
ploy this force in making war against the enemy. This 
is the plain language, and history proves that it was the 
well-known intention of the framers, of the Constitution. 

It will not be denied that the general "power to de- 

21 Richardson, V, pp. 539-40. 



I50 THE PRESIDENT'S CONTROL 

clare war" is without limitation and embraces within 
itself not only what writers on the law of nations term 
a public or perfect war, but also an imperfect war, and, 
in short, every species of hostility, however confined or 
limited. Without the authority of Congress the Presi- 
dent can not fire a hostile gun in any case except to repel 
the attacks of an enemy. It will not be doubted that 
under this power Congress could, if they thought proper, 
authorize the President to employ the force at his com- 
mand to seize a vessel belonging to an American citizen 
which had been illegally and unjustly captured in a for- 
eign port and restore it to its owner. But can Congress 
only act after the fact, after the mischief has been done ? 
Have they no power to confer upon the President the 
authority in advance to furnish instant redress should 
such a case afterwards occur? Must they wait until the 
mischief has been done, and can they apply the remedy 
only when it is too late? To confer this authority to 
meet future cases under circumstances strictly specified 
is as clearly within the war-declaring power as such an 
authority conferred upon the President by act of Con- 
gress after the deed had been done. In the progress of 
a great nation many exigencies must arise imperatively 
requiring that Congress should authorize the President 
to act promptly on certain conditions which may or may 
not afterwards arise. Our history has already presented 
a number of such cases.^^ 

One of the most remarkable episodes of recent years 
illustrative of the President's power and duty to pro- 
tect American rights abroad is furnished by President 
McKinley's dispatch of a naval force and an army 
of some five thousand men, under General Chaffee, 
to China in 1900, at the time of the Boxer Movement. 
In his annual Message the President referred to his 

action thus: 

• * 

^^Ih., pp. 569-70. 



OF FOREIGN RELATIONS 151 

Our declared aims involved no war against the Chinese 
nation. We adhered to the legitimate office of rescuing 
the imperiled legation, obtaining redress for wrongs al- 
ready suffered, securing wherever possible the safety of 
American life and property in China, and preventing a 
spread of the disorders or their recurrence. 

The expedition took place in cooperation with like 
expeditions sent out by several European countries, 
whose plenipotentiaries were joined by the American 
minister to China in pressing the Protocol of Septem- 
ber 7, 1 90 1, upon the Chinese Imperial Government. 
This instrument detailed certain acts of reparation by 
the Chinese authorities for the injuries that foreign 
powers, their citizens and subjects, had suffered from 
the uprising, among other things the payment of an 
indemnity. The protocol was ratified for the United 
States by the President alone, without reference to 
the Senate.^^ 

23 See Moore's Digest, V, pp. 476-533, passim. See a reference 
in Mr. Taft's The Presidency, p. 88, to a "landing of marines 
and quite a campaign" in Nicaragua which occurred during his 
administration. Mr. Roosevelt's dispatch of ihe fleet around 
the world in his second administration did not involve hostile 
consequences, but affords a remarkable example of the possi- 
bilities of the powers of the President as Commander-in-Chief. 
Reference should also be made at this point to the landing of 
American troops at Vera Cruz in the summer of 1914, to punish 
Huerta for his refusal to render what the President thought 
a proper apology for an affront to the American flag and a 
violation of American rights. "This act," in the words of Presi- 
dent Taft, "was committed before authority was given by Con- 
gress, but the necessary authority had passed one house, and 
was passing another at the time, and the question as to the right 
of the Executive to take action without Congressional authority 
was avoided by full and immediate ratification." 



152 THE PRESIDENT'S CONTROL 

On February 25, 191 7, President Wilson went be- 
fore Congress, and in view of the renewal by Ger- 
many of ruthless submarine warfare, asked that body 
to authorize him 

to supply our merchant ships with defensive arms should 
that become necessary, and with the means of using 
them, and to employ any other instrumentalities or 
methods that may be necessary and adequate to protect 
our ships and our people in their legitimate and peaceful 
pursuits on the seas.^^^ 

At the same time the President further said: 

No doubt I already possess that authority without special 
warrant of law, by the plain implication of my constitu- 
tional duties and powers ; but I prefer in the present cir- 
cumstances not to act upon general implication. I wish 
to feel that the authority and the power of the Congress 
are behind me in whatever it may become necessary for 
me to do. We are jointly the servants of the people and 
must act together and in their spirit, so far as we can 
divine and interpret it.-* 

Thereupon the following bill was introduced into 
the House of Representatives from the Foreign Af- 
fairs Committee: 

Be it enacted by the Senate and House of Repre- 
sentatives OF THE United States of America in Con- 
gress Assembled, That the President of the United 
States be and hereby is authorized and empowered to 
supply merchant ships, the property of citizens of the 
United States and bearing American registry, with de- 
fensive arms, should it in his judgment become necessary 
for him to do so, and also with the necessary ammuni- 

^^^New York Times, Feb. 27, 1917. • 



OF FOREIGN RELATIONS 153 

tion and means of making use of them in defense against 
unlawful attack ; and that he be and is hereby authorized 
and empowered to employ such other instrumentalities 
and methods as may in his judgment and discretion seem 
necessary and adequate to protect such ships and the 
citizens of the United States in their lawful and peaceful 
pursuits on the high seas.^^ 

The measure passed the House with the usual expe- 
dition. In the Senate it met with opposition which 
eventually, because of the termination of Congress, 
proved fatal to it. On the constitutional question, the 
opponents of the measure took the position that it was 
invalid as comprising a delegation by Congress of its 
war declaring power. Said Senator Stone of Missouri : 

I believe the bill to be not only violative of the Con- 
stitution — destructive of one of the most important 
powers vested in the Congress, the war-making power — 
but that its passage would set a precedent fraught with 
future danger to our form of government and to public 
liberty. . . . 

The Constitution vests the war-making power alone 
in the Congress. It is a power the Congress is not at 
liberty to delegate. Moreover, I am personally unwilling 
to part with my constitutional responsibility as a Senator 
to express my judgment upon the issue of war whenever 
and however it may be presented. I believe this law 
would contravene the Constitution. . . . 

The Congress would have abdicated and surrendered 
in advance all chance of passing upon the questions ad- 
judicated by the President — leaving everything to him. 
They would have surrendered their constitutional right 
and lost their opportunity to determine whether or not 
the facts upon which the President acted would justify 
a declaration of war or warrant the inauguration of war 
by a definite act of war. Under this bill all such ques- 

25/6. 



154 THE PRESIDENT'S CONTROL 

tions would be left to the President alone. The Congress 
would have already divested themselves even of the poor 
privilege of saying that they approved or disapproved 
of the President's course. After the beginning of war, 
it would certainly be too late to speak. They might find 
the country in the midst of a war begun by the President 
under colorable authority, and it would then, as I have 
said, be too late for Congress to disapprove or reject, 
and any attempt to do so would be fruitless. All they 
could do would be to approve. In the nature of things 
they could not disapprove. Being in war, we would have 
no other alternative but to go on and fight it out to the 
bitter end. Would any President surrender his constitu- 
tional powers in that way to the Congress? Would yoil 
have him do so? Be not deceived. Senators; this bill, 
if enacted, would confer power upon the President to 
initiate war, if he should so desire or determine, and to 
do that supremely solemn thing without first submitting 
the choice of war or peace to the Congress.^^ 

Senator Stone also argued that inasmuch as the 
practice of a formal declaration of war had fallen into 
disuse, Congress must, if it would retain any authority 
over the subject of war making at all, take the position 
"that nothing can be done to inaugurate or initiate 
war until Congress first authorizes it." 

As to the President's power in the absence of 
authorization by Congress, Senator Stone said: 

Mr. President, it has been argued here that the Presi- 
dent of the United States has constitutional power to do 
the very things this bill would authorize, whether the bill 
be enacted into law or not. It is said that he has implied 
constitutional power ample for this purpose. If that 
be so, would it not be a work of supererogation for the 
Congress to grant the President an authority he already 
possesses by a higher title ? But I do not agree that the 

^^ Record, 64 Cong., 2 Sess., pp. 5895-6. 



OF FOREIGN RELATIONS 155 

President has any such constitutional power. The very- 
fact that you seek to vest him with this statutory power 
is proof that you do not yourselves believe in this claim 
put forth that he is already invested with adequate con- 
stitutional power to do the things you would have 
him do. 

He, the President — "shall take care that the laws be 
faithfully executed." 

That is the clause of the Constitution upon which this 
claim is predicated that these implied powers are vested 
in the President. What is the meaning of the term "he 
shall take care that the laws be faithfully executed"? 
I can answer that best by illustrations or by example. 
For example — he must execute the judgments and de- 
crees of the courts of the United States, and use force 
if necessary when they can not be executed in the ordi- 
nary course of judicial procedure, for he is at the head 
of the executive department. It is his duty to preserve 
the domestic public order within the Federal jurisdiction. 
It is his duty to protect the mails of the United States 
from lawless interference ; to prevent the violation of our 
immigration laws, and so on and so forth. With respect 
to all such matters the power and duty of the President 
are plain. I think that that is substantially the scope and 
meaning of this clause of the Constitution. I can not 
consent that this clause confers, or was ever intended to 
confer, power upon the President to determine an issue 
between this Nation and some other sovereignty — an 
issue involving questions of international law — and to 
authorize him to settle that law for himself, and then 
proceed to employ the Army and Navy to enforce his 
decision. A contrary view would clearly place the war 
making power in the hands of the President.^^ 

On March 12 the Secretary of State gave out a 
statement to all foreign legations in Washington, say- 
ing that, in view of the renewal by Germany of un- 
restricted submarine warfare, 

27 ih., pp. 5901-2. , 



156 THE PRESIDENT'S CONTROL 

the Government of the United States has determined to 
place on all American merchant vessels sailing through 
the barred areas an armed guard for the protection of 
the vessels and the lives of the persons on board.^® 

I conclude that the Presidential power under survey 
is somewhat analogous to the so-called right of self- 
preservation at International Law. Theoretically the 
power is a defensive power and reserved for grave 
and sudden emergencies. Practically the limit to it is 
to be found in the powers of Congress and public 
opinion. 

4 — ^The right of the President to adopt warlike 
measures, in the absence of legislation, to protect "in- 
choate" interests of the United States abroad was first 
discussed in 1844. In negotiating this year for the 
annexation of Texas to the United States President 
Houston of that republic demanded of President Tyler 
that the latter should so dispose the naval and military 
forces of the United States as to afford Texas ade- 
quate protection against the danger of a Mexican in- 
vasion, in the interval between the signature of the 
treaty and its final ratification. Tyler complied, and 
upon the passage by the Senate of a resolution of in- 
quiry, defended his course thus: 

It is due to myself that I should declare it as my 
opinion that the United States having by the treaty of 
annexation acquired a title to Texas which requires only 
the action of the Senate to perfect it, no other power 
could be permitted to invade and by force of arms to 

28 The President might undoubtedly, had he chosen, have de- 
tailed war vessels to escort American merchantmen through the 
barred areas. 



OF FOREIGN RELATIONS 157 

possess itself of any portion of the territory of Texas 
pending your deliberations upon the treaty without plac- 
ing itself in an hostile attitude to the United States and 
justifying the employment of any military means at our 
disposal to drive back the invasion.^^ 

Benton, who had moved the resolution of inquiry 
and bitterly opposed the treaty, answered as follows : 

This is a reversal of the power of the Senate, and a 
reading backwards of the constitution. It makes an act 
of defeasance from the Senate necessary to undo a treaty 
which the President sends to us, instead of requiring 
our assent to give it validity. It assumes Texas to be 
in the Union, and protected by our constitution from 
invasion or insurrection, like any part of the existing 
States or Territories; and to remain so till the Senate 
puts her out by rejecting the treaty! This, indeed, is 
not merely reading, but spelling the constitution back- 
wards! it is reversing the functions of the Senate and 
making it a nulHfying, instead of a ratifying body. We 
are to dissent, instead of consent ; and until our dissent 
is declared, the treaty is to be acted on; and that, even 
in the article of war ! Besides reversing our constitution, 
this reading of the Senate's functions would lead to every 
folly, and to scenes worthy of bedlam : for, the execution 
of the treaty commencing with its signature, must go on 
till the Senate rejects it. Apply this to ordinary treaties, 
where civil acts only are to be performed, and still folly 
and mischief would result from suddenly stopping what 
had been prematurely begun. But apply it to extraor- 
dinary treaties, like the present one, where a war is 
adopted, and its prosecution instantly assumed : apply the 
new doctrine to such a treaty as this, and see how it 
works. Why, when the battle was half fought — when 
soldiers were falling in the field, and merchants were 
flying from the country — when blood was flowing and 

29 Richardson, IV, pp. 317-8. For the crucial documents in 
the correspondence between Texas and the United States, see 
Globe, XIII, Appendix, p. 572. 



158 THE PRESIDENT'S CONTROL 

property lost, a messenger might come staving up, with 
a peace-warrant to arrest the combatants. The living 
might indeed be arrested, and further killing stopped; 
but who could restore the dead to life? Who could re- 
pair the loss of the ruined merchants? What art could 
hide the shame of such bedlamite conduct ?^*^ 

Tyler's efforts to annex Texas had their counterpart 
in 1 87 1, in President Grant's efforts to secure Santo 
Domingo for the United States. The annexation was 
arranged for in a treaty which was negotiated by one 
of Grant's private secretaries with Buenaventura Baez, 
who was at the moment Dictator of the revolution- 
ridden Republic. Now Baez was fearful of being over- 
turned at any time by an internal insurrection and was 
also apprehensive of an attack from Hayti. At his 
request, accordingly, Grant sent a strong naval arma- 
ment to the island, with instructions to prevent, by 
force if necessary, any hostile move by Hayti, and 
also, so far as possible, any internal uprising. Thus 
far the parallel to Tyler's earlier course is fairly clear, 
but at one point Grant went considerably beyond his 
predecessor, for he continued in force the orders just 
referred to even after the treaty with Santo Domingo 
had been formally rejected by the Senate. The out- 
come was a ferocious assault upon his whole Domini- 
can policy, which was led by Sumner, but was ably sup- 
ported by Carl Schurz, then Senator from Missouri. 

So far as it rested on constitutional grounds, Sum- 
ner's position was stated in the following resolutions, 
which were offered by him some months after the 

treaty had been acted on : 

« • 

^'^ Globe, loc. cit, pp. 498-9. 



OF FOREIGN RELATIONS 159 

Resolved, That under the Constitution of the United 
States the power to declare war is placed under the safe- 
guard of an act of Congress; that the President alone 
cannot declare war; that this is a peculiar principle of 
our Government by which it is distinguished from 
monarchical Governments, where power to declare war, 
as also the treaty-making power, is in the Executive 
alone; that in pursuance of this principle the President 
cannot, by any act of his own, as by an unratified treaty, 
obtain any such power, and thus divest Congress of its 
control; and that therefore the employment of the Navy 
without the authority of Congress in acts of hostility 
against a friendly foreign nation, or in belligerent inter- 
vention in the affairs of a foreign nation, is an infraction 
of the Constitution of the United States and a usurpation 
of power not conferred upon the President. 

Resolved, That while the President, without any pre- 
vious declaration of war by act of Congress, may defend 
the country against invasion by foreign enemies, he is 
not justified in exercising the same power in an outlying 
foreign island, which has not yet become part of the 
United States; that a title under an unratified treaty is 
at most inchoate and contingent, while it is created by 
the President alone, in which respect it differs from any 
such title created by act of Congress; and since it is 
created by the President alone, without the support of 
law, whether in legislation or a ratified treaty, the em- 
ployment of the Navy in the maintenance of the Govern- 
ment there is without any excuse of national defense, as 
also without any excuse of a previous declaration of war 
by Congress.^^ 

Schurz developed the same position in argument 
on the floor, thus: 

As I have said, I repeat that the President in ordering 
the naval commanders of the United States to capture 
and destroy by force, without being attacked, without 
our territory being invaded by force, the vessels of a 

31 Glohe, 42 Cong., i Sess., Pt. I, p. 294. 



i6o THE PRESIDENT'S CONTROL 

nation with whom the United States were at peace in 
a contingency arbitrarily defined by himself, did usurp 
the war-making power of Congress ; and I repeat it. . . . 

Now let us see what Senators have to say to controvert 
this argument or to weaken its force. . . . 

Gentlemen claim that the President, of whom nobody 
pretends that he possesses the power to initiate a war 
of his own motion under the Constitution, still does pos- 
sess the power, by making a treaty, to create an inchoate 
right of the United States in some foreign territory, and 
having by hTs own arbitrary act created that inchoate 
right, he has the power at his own arbitrary pleasure, 
without authority from Congress, to commit acts of war 
for the enforcement of the inchoate right. In other 
words, it is claimed that the President by an act per- 
formed by himself at his own arbitrary pleasure, in con- 
junction with a foreign Government, may obtain for him- 
self alone the war making power, which the Constitution 
expressly vests in Congress. I look upon this as perhaps 
the hugest absurdity, the most audacious preposterosity, 
the most mischievous, dangerous, and anti-republican 
doctrine that ever was broached on the floor of the Sen- 
ate. When we hear advocated in the American Senate 
so wild a heresy, that the President, by a mere sleight 
of hand, may steal from Congress the war-making power, 
does it not occur to you. Senators, that it is at last time 
that such theories and such acts should be sifted to the 
bottom by independent men?^^ 

The President's defense was undertaken by Senator 
Harlan of Iowa along the following lines : 

I shall now attempt to proceed with the line of prece- 
dents I began to name. When we were disputing with 
Great Britain about our northeastern boundary, I re- 
member we arrayed some military forces in that vicinity. 
When we were engaged in a controversy with the same 
Government on the northwestern boundary, I remember 
that the disputed territory was taken possession of by 

32/Z)._, Appendix, p. 52. 



OF FOREIGN RELATIONS i6i 

the troops of the United States without any formal 
declaration of war. I have heard something of the bom- 
bardment of Grey town by the Navy of the United States,^ 
and I have never seen any declaration of war to justify 
that act of hostility. That was done, it is true, under a 
Democratic Administration. . . . 

I have heard something of the bombardment of the 
ports of Japan by the combined Navies of the United 
States, France, and England, which, as I am informed 
by my honorable friend from Vermont (Mr. Edmunds), 
was not condemned, and we took our share of the in- 
demnity thus secured from the Government of Japan, 
amounting, I believe, to some $3,000,000, still, I am told, 
in the Treasury of the United States ; and yet there was 
no formal declaration of war to justify it. I have heard 
also, I think, of a naval engagement in the waters of 
China by the combined naval forces of the United States, 
England, and France, and our part of the proceeds of 
the settlement of that controversy was duly paid to our 
Government; a part of it has been distributed to Amer- 
ican claimants, and the remainder, now in the Treasury, 
has been the subject of a good deal of reflection on the 
part of the honorable Senator from Massachusetts, dur- 
ing the preceding session of Congress, in trying to devise 
some fit mode of disposing of it. That engagement was 
not preceded, as far as I have been informed, by any de- 
claration of war by the Congress of the United States. 

Now, how do you account for all these acts of hostil- 
ity, not threats, not diplomatic dispatches merely, not a 
declaration if our rights shall be invaded we would de- 
fend them, but actual war; not a war of words, but a 
war made with armies and navies, taking possession of 
disputed and hostile territory, fighting pitched battles and 
bombarding cities; war made with guns and solid shot 
and shell, where we compelled the vanquished to pay 
indemnity, and put it into our Treasury, and yet no 
declaration of war? How does it happen that these two 
Senators, in their zeal to defend the Constitution of the 
United States, can find but one case worthy of their logic, 
their great learning, and their eloquence ?^^ 

33/&., p.65. 



i62 THE PRESIDENT'S CONTROL 

Harlan's argument from precedent at least demon- 
strated the futility of attempting to confine the Presi- 
dent's protective function to the mere duty of repelling 
invasion or immediate physical attack, nor do Schurz 
and Sumner appear to have attempted to meet him 
upon this issue. The only constructive principle of- 
fered by either of these gentlemen was their sug- 
gestion of a difference between "inchoate" and 
"contingent" interests and rights of full legal status. 
Most, if not all, of the precedents brought forward 
by Harlan could have been distinguished, it would 
seem, from the case in hand in this manner. 

Yet later events have gone far to sweep away even 
this distinction, at least as to that geographical re- 
gion where American "interests" are most sensitive. 
I refer especially to President Roosevelt's action in 
preventing an invasion of Panama by Colombia in the 
autumn of 1903, and the present Administration's 
Caribbean policy, which to date has involved the active 
employment of the forces of the United States, with- 
out special authorization by Congress, in Nicaragua, 
Hayti, and Santo Domingo. In the last named re- 
public, moreover, American forces instituted, on No- 
vember 29, 1 91 6, a military occupation "exercising 
military government" pending the restoration of civil 
order, which action was justified by appeal to Article 
III of the Treaty of 1907 with Santo Domingo. It 
is interesting to note, therefore, that a similar article 
appears in the Treaty of 19 16 with Nicaragua, while 
articles providing specifically for intervention by our 
Government in their affairs, in certain contingencies, 



OF FOREIGN RELATIONS 163 

are contained in existing treaties with Cuba, Panama 
and Hayti. It thus appears that Grant's action in 1871 
was forerunner of an important development in Presi- 
dential war making, which, however, has been confined 
in actual application to the states of the Caribbean and 
which has today been generally regularized by treaty 
arrangements.^* 

5 — In the foregoing pages I have had frequent oc- 
casion to refer to "political questions." I shall now 
explain this reference. Incidentally to the discharge 
of his diplomatic functions the President — and for 
that matter. Congress too, when its action touches 
foreign relations — finds it necessary to decide many 
questions of a juristic character, questions involving 
the interpretation of treaties and other bilateral agree- 
ments, or even of the Law of Nations. Now it is the 
practice of the Court, when such determinations fall 
clearly within the diplomatic field, that is, are made 
with jurisdiction, to treat them not only as final but 

3* The treaty with Cuba referred to above was ratified July, 
1904, and embodies the provisions of "the Piatt Amendment" 
Tihe intervention in Cuba in 1907 took place in pursuance of its 
provisions. The treaty with Panama, which was ratified in Feb- 
ruary, 1904, was modelled after the Cuban treaty. The Haytian 
treaty was ratified February 28, 1916. Article XIV of it reads : 
"Should the necessity occur, the United States will lend an effi- 
cient aid for the preservation of Haytian Independence and the 
maintenance of a government adequate for the protection of 
life, property and individual liberty." On the recent intervention 
in Santo Domingo, see Prof. P. M. Brown in American Journal 
of International Law, XI, 394 ff. I do not refer in the text to 
what occurred in 1916 along the Mexican border, as the President 
was in this instance but performing his constitutional duty of 
repelling invasion. 



i64 THE PRESIDENT'S CONTROL 

also as establishing binding rules for all future cases 
in which the same questions are raised collaterally. 
This is on the ground that such questions, involving 
as they do the opposing claims of sovereignties, are 
political rather than legal in their nature. The follow- 
ing cases afford illustration of political questions : In 
the case of Foster v. Neilson, the question was the 
validity of a grant made by the Spanish Government 
in 1804 of land lying to the east of the Mississippi 
River, and involved in this question was the further one 
whether the region between the Perdido and Missis- 
sippi Rivers belonged in 1804 to Spain or the United 
States. Marshall held that the Court was bound by 
the action of the political departments, the President 
and Congress, in claiming the land for the United 
States. He said: 

If those departments which are entrusted with the 
foreign intercourse of the nation, which assert and main- 
tain its interests against foreign powers, have unequivo- 
cally asserted its rights of dominion over a country of 
which it is in possession, and which it claims under a 
treaty; if the legislature has acted on the construction 
thus asserted, it is not in its own courts that this con- 
struction is to be denied. A question like this respecting 
the boundaries of nations is, as has been truly said, more 
a political than a legal question, and in its discussion, 
the courts of every country must respect the pronounced 
will of the legislature.^^" 



35 



The doctrine thus clearly stated was further ampli- 
fied in the case of Williams v. The Suffolk Insurance 
Company. In this case the underwriters of a vessel 

3^2 Peters 253, 308. 



OF FOREIGN RELATIONS 165 

which had been confiscated by the Argentine Govern- 
ment for catching seals off the Falkland Islands con- 
trary to that government's orders sought to escape 
liability by showing that the Argentinian government 
was the sovereign over these islands and that, accord- 
ingly, the vessel had been condemned for wilful dis- 
regard of legitimate authority. The Court decided 
against the company on the ground that the President 
had taken the position that the Falkland Islands were 
not a part of Argentina. It said : 

Can there be any doubt that when the executive branch 
of the government, which is charged with the foreign 
relations, shall in its correspondence with a foreign nation 
assume a fact in regard to the sovereignty of any island 
or country, it is conclusive on the judicial department? 
And in this view it is not material to inquire, nor is it 
the province of the court to determine, whether the execu- 
tive be right or wrong. It is enough to know that, in the 
exercise of his constitutional functions, he has decided 
the question. Having done this under the responsibilities 
which belong to him, it is obligatory on the people and 
government of the Union. If this were not the rule 
cases might often arise in which, on most important 
questions of foreign jurisdiction, there would be an ir- 
reconcilable difference between the executive and judicial 
departments. By one of these departments, a foreign 
island or country might be considered as at peace with 
thi United States whilst the other would consider it in 
a state of war. No well regulated government has ever 
sanctioned a principle so unwise, and so destructive of 
national character.^^ 

Other cases illustrating the same principle may be 
mentioned more briefly. In United States v. Palmer^^ 

36 13 Peters 415, 420. 
373 Wheaton 610. 



i66 THE PRESIDENT'S CONTROL 

the question was whether certain maritime captures 
by an unrecognized community constituted piracy. 
The Court, through Chief Justice Marshall, held that 
it must view any newly constituted community as it 
was viewed by the legislative and executive branches 
of the Government; and that since the Government 
had remained neutral in the war in question, acts of 
war authorized under the Law of Nations should not 
be considered as criminal by the Court. Thus the 
right to determine the boundaries of the country is 
a political function; also the right to determine what 
country is sovereign of a particular region; also the 
right to determine whether a community is entitled 
under International Law to be considered a belligerent 
or an independent state; also the right to determine 
who is the de jure or de facto ruler of a country;^® also 
the right to determine whether a particular person is 
a duly accredited diplomatic agent to the United 
States ;^^ also the right to determine how long a mili- 
tary occupation shall continue in fulfillment of the 
terms of a treaty ;*° also the right to determine whether 
a treaty is in effect or not, though doubtless an ex- 
tinguished treaty could not be constitutionally renewed 
by tacit consent.*^ 

This concept of political questions is important for 
this reason: It explains the lack which we have fre- 
quently noted of definite legal criteria for determining 

38 Jones V. U. S., 137 U. S. 202. 

39 In re Baiz, 135 U. S. 403. 

*o Neely v. Henkel, 180 U. S. 109. 

*^Terlinden v. Ames, 184 U. S. 270; Charlton v. Kelly, 229 

U. S. 447. 



OF FOREIGN RELATIONS 167 

the scope of the President's powers in the field of 
foreign relations and for deciding those contests for 
power in this field which have frequently occurred 
between the President and Congress or the President 
and the Senate. Such criteria lack because the courts 
have never had occasion to develop them, and they 
have never had occasion to develop them because of 
this concept. 



PART THREE : THE GENERAL ISSUE AGAIN 



CHAPTER V 

A Senatorial Debate 

In his "Autobiography" Mr. Roosevelt sets forth 
his theory of the Presidency thus : 

The most important factor in getting the right spirit 
in my Administration, next to the insistence upon cour- 
age, honesty, and a genuine democracy of desire to serve 
the plain people, was my insistence upon the theory that 
the executive power was limited only by specific restric- 
tions and prohibitions appearing in the Constitution or 
imposed by the Congress under its Constitutional powers. 
My view was that every executive officer, and above all 
every executive officer in high position, was a steward 
of the people bound actively and affirmatively to do all 
he could for the people, and not to content himself with 
the negative merit of keeping his talents undamaged in 
a napkin. I declined to adopt the view that what was 
imperatively necessary for the Nation could not be done 
by the President unless he could find some specific 
authorization to do it. My belief was that it was not 
only his right but his duty to do anything that the needs 
of the Nation demanded unless such action was forbidden 
by the Constitution or by the laws. Under this interpre- 
tation of executive power I did and caused to be done 
many things not previously done by the President and 
the heads of the departments. I did not usurp power, 
but I did greatly broaden the use of executive power. 
In other words, I acted for the public welfare, I acted 
for the common well being of all our people, whenever 

i68 



CONTROL OF FOREIGN RELATIONS 169 

and in whatever manner was necessary, unless prevented 
by direct constitutional or legislative prohibition. I did 
not care a rap for the mere form and show of power ; 
I cared immensely for the use that could be made of 
the substance.^ 

As he himself explains, he followed this theory not 
only in his domestic policy but in his foreign policy 
as well. His intervention in Panama in 1903, his 
agreement with Santo Domingo in 1905, his dispatch 
of an American representative to the Moroccan con- 
ference the same year, were all more or less connected 
with this theory, and they all aroused, especially in 
the Senate, more or less criticism. Finally, in the 
early days of 1906 Senator Bacon of Georgia and 
Senator Spooner of Wisconsin, aided by Senator Bev- 
eridge of Indiana, came to grapples over the consti- 
tutional issues raised by Mr. Roosevelt's aggressive- 
ness. The debate which ensued, and of which the 
principal part is given below, reached, it will be per- 
ceived, the fundamental issue that more than a century 
before had divided "Pacificus" and ''Helvidius" : 

SPEECH OF SENATOR SPOONER^ 

Mr. President: I take the floor upon this bill, not, 
however, to discuss it, but to present as briefly as I may 
my views upon another important subject. I am impelled 
to do this by recent debate here, more or less critical of 
the conduct of our foreign relations by the President, 
and under circumstances which, with great deference, 

1 Op. cit, pp. 388-9. 

^Record, 59 Cong., i Sess. (Vol. XL, Pt. 2), pp. 1417-21. This 
debate is also given in Professor Reinsch's Readings in Amer- 
ican Federal Government, p. 81 ff. 



I70 THE PRESIDENT'S CONTROL 

I can not regard as constituting in any degree wise 
precedent. 

Matters which are being considered by the Senate as 
an executive body have been debated in open legislative 
session. Fifteen years of service here has fully con- 
firmed in me the impression, early formed after my ad- 
vent in this body, that the consideration of treaties and 
all questions involving our foreign relations are best, 
save in very exceptional cases, conducted behind closed 
doors. This, of course, Mr. President, not because there 
is anything said or done which Senators would wish 
withheld from our own people, but because it is inevitable 
that in the perfect frankness which should characterize 
debate involving our foreign relations many things must 
be said, and are always said, which, in the public interest, 
ought not to be said in the hearing of other nations. I 
am clearly of the conviction, having regard to the peculiar 
relations created by the Constitution between the Senate 
and the Executive in respect to the exercise of the treaty- 
making power, that it is not a healthy precedent to estab- 
lish, or one much to be followed, that involves public 
discussion of current foreign relations, including treaties. 
If indulged at all it ought to be done by a vote of the 
body since otherwise some feel justified in discussing 
phases which others feel not at liberty to debate. . . . 

Mr. President, with great respect for those who differ 
from me, I deprecate the course which has been pursued. 
I believe that it is not a proper course to be pursued by 
the Senate in respect of our foreign relations, save in 
extraordinary circumstances, if at all. The Senate has 
nothing whatever to do with the negotiation of treaties 
or the conduct of our foreign intercourse and relations 
save the exercise of the one constitutional function of 
advice and consent which the Constitution requires as a 
precedent condition to the making of a treaty. Except 
as to the participation in the treaty-making power the 
Senate, under the Constitution, has obviously neither re- 
sponsibilities nor power. 

From the foundation of the Government it has been 
conceded in practice and in theory that the Constitution 



OF FOREIGN RELATIONS 171 

vests the power of negotiation and the various phases — 
and they are multifarious — of the conduct of our foreign 
relations exclusively in the President. And, Mr. Presi- 
dent, he does not exercise that constitutional power, nor 
can he be made to do it, under the tutelage or guardian- 
ship of the Senate or of the House or of the Senate and 
House combined. 

Mr. Tillman. Will the Senator allow me to ask him 
a question? 

Mr. Spooner. Certainly. 

Mr. Tillman. What interpretation does the Senator 
put upon the word "advice" in the Constitution? Can 
you give advice after a thing has been done? 

Mr. Spooner. Yes; you can give advice — 

Mr. Tillman. As to whether or not a thing has been 
properly done, but you can not give advice after it has 
been done. 

Mr. Spooner. I will proceed to answer the question, 
if I am able. 

The words "advice and consent of the Senate" are used 
in the Constitution with reference to the Senate's partici- 
pation in the making of a treaty and are well translated 
by the word "ratification" popularly used in this con- 
nection. The President negotiates the treaty, to begin 
with. He may employ such agencies as he chooses to 
negotiate the proposed treaty. He may employ the am- 
bassador, if there be one, or a minister or a charge 
d'affaires, or he may use a person in private life whom 
he thinks by his skill or knowledge of the language or 
people of the country with which he is about to deal is 
best fitted to negotiate the treaty. He may issue to the 
agent chosen by him — and neither Congress nor the Sen- 
ate has any concern as to whom he chooses — such in- 
structions as seem to him wise. He may vary them from 
day to day. That is his concern. The Senate has no 
right to demand that he shall unfold to the world or to 
it, even in executive session, his instructions or the pros- 
pect or progress. of the negotiation. I said "right." I 
use that word advisedly in order to illustrate what all 
men who have studied the subject are willing to concede 



172 THE PRESIDENT'S CONTROL 

— that under the Constitution the absolute power of ne- 
gotiation is in the President and the means of negotiation 
subject wholly to his will and his judgment. ^ 

When he shall have negotiated and sent his proposed 
treaty to the Senate the jurisdiction of this body attaches 
and its power begins. It may advise and consent, or it 
may refuse. And in the exercise of this function it is 
as independent of the Executive as he is independent of 
it in the matter of negotiation. 

I do not deny the power of the Senate either in legisla- 
tive session or in executive session — that is a question 
of propriety — to pass a resolution expressive of its opin- 
ion as to matters of foreign policy. But if it is passed 
by the Senate or by the House or by both Houses, it is 
beyond any possible question purely advisory, and not 
in the slightest degree binding in law or conscience upon 
the President. It is easy to conceive of circumstances 
in which to pass in legislative session a resolution like 
that first introduced by my distinguished and learned 
friend, the Senator from Georgia [Mr. Bacon], asking 
the President, if in his opinion not incompatible with 
the public good, to transmit the correspondence in a 
pending negotiation to the Senate, might be productive 
of mischief. I think the Morocco case is perhaps one 
which could be productive of mischief in this, that the 
President's declination, which would be within his power, 
upon the ground that the public good required that the 
correspondence should not be sent to the Senate, might 
give rise to an inference in other countries that some- 
thing with reference to one or more of the parties was 
being concealed from them. 

Mr. President, I do not stop at this moment to cite 
authorities in support of the proposition, that so far as 
the conduct of our foreign relations is concerned, ex- 
cluding only the Senate's participation in the making of 
treaties, the President has the absolute and uncontrolled 
and uncontrollable authority. Under the confederation 
there was felt to be great weakness in a system that made 
the Congress the organ of communication with foreign 
governments; but when the Constitution was formed, it 



OF FOREIGN RELATIONS 173 

being almost everywhere else in the world a purely execu- 
tive function, it was lodged with the President. He was 
given the power, with all other Executive functions, "to 
receive ambassadors and other public ministers." His 
exercise of that function can not, under the Constitution, 
be controlled by any other body in the Government. That 
is a tremendous power given by the Constitution to the 
President — the power to receive or reject an ambassador 
or a public minister or any one of the representatives 
known to international law as it existed when the Con- 
stitution was adopted. That involves not simply the mere 
recognition of governments or administrations, but it in- 
volves sometimes the recognition of a new nation. It 
involves passing upon the question of independence. It 
involves decision as to the various changes which occur 
in the administration or government of nations — one ad- 
ministration or faction in power to-day, another next 
week, another a month later. The President decides. 
He was given the power to appoint "ambassadors, other 
public ministers, and consuls," which has been held to 
include diplomatic agents then known to international 
law and international intercourse. Those offices are not 
created by the appropriate compensation for those ap- 
pointed by the President, but it has been well held and 
is irrefutable that under the Constitution the offices are 
created by that instrument, and he is given his own abso- 
lute will as to when he will appoint and whom he will 
appoint — 

Mr. Tillman. Mr. President — 

The Vice-President. Does the Senator from Wis- 
consin yield to the Senator from South Carolina? 

Mr. Spooner, Except as to confirmation by the Senate. 

The Vice-President. Does the Senator from Wis- 
consin yield to the Senator from South Carolina ? 

Mr. Spooner. Certainly. 

Mr. Tillman. The Senator from Wisconsin having 
modified his statement to that extent, I will not allude to 
that point ; but I should like to ask him, he having given 
us such a luminous exposition of the Constitution, what 
is the relation between the President and the Foreign 



174 THE PRESIDENT'S CONTROL 

Relations Committee of the Senate? Do those men never 
advise ? 

Mr. Spooner. Is the Senator serious in putting to 
me that question ? 

Mr. Tillman. I am. 

Mr. Spooner. I will give it a serious answer. 

The relation of members of the Foreign Relations Com- 
mittee to the executive department of the Government 
in its relation to foreign relations is precisely the relation 
which the Senator from South Carolina and his colleagues 
sustain to the executive department in its relation to for- 
eign relations. The Committee on Foreign Relations, like 
the other committees of this body, is not an independent 
entity. Its members are Senators who are designated 
by the body to study and report upon certain subjects, 
and the committee therefore is but the servant of the 
Senate, as all other committees are. A member of the 
Foreign Relations Committee, as a Senator, in his relation 
to the Senate and executive department is only a Senator, 
just as those who are not on that committee are Senators. 

Of course, it will sometimes happen that members of 
the Foreign Relations Committee, charged by the Senate 
with that particular subject, will obtain information as 
servants of the Senate, in order to bring it to the atten- 
tion of the Senate, which other Senators might not seek; 
but that is all. 

Mr. Beveridge. It is a matter of expediency. 

Mr. Spooner. It is not a matter of expediency. It is 
a matter of industry, and a wise attempt at least to dis- 
charge the duty which the Senate has committed to them. 

Mr. Beveridge. They are not compelled to do it by 
the Constitution. 

Mr. Spooner. Oh, no. 

Mr. Lodge. Mr. President — 

The Vice-President. Does the Senator from Wis- 
consin yield to the Senator from Massachusetts? 

Mr. Lodge. I merely wish to remind him of a fact 
with which he no doubt is very familiar, that in the Ad- 
ministration of Mr. Madison the Senate deputed a com- 
mittee to see him in regard to the appointment of a 



OF FOREIGN RELATIONS 175 

minister to Sweden, I think, and he replied that he could 
recognize no committee of the Senate, that his relations 
were exclusively with the Senate. I have no doubt the 
Senator intended to recall that, but as he stated the exact 
relations as he understood them, it seemed to bear on 
that point. 

Mr. Spooner. I did not recall it ; I am obliged to the 
Senator for recalling it; but I think I covered it — 

Mr, Lodge. You did, entirely. 

Mr. Spooner. By saying that members of a committee 
have no relations to any Department of the Government, 
simply being servants of the Senate, which has the rela- 
tion to the Departments of the Government. . . . 

The President is so supreme under the Constitution in 
the matter of treaties, excluding only the Senate's ratifi- 
cation, that he may negotiate a treaty, he may send it to 
the Senate, it may receive by way of "advice and consent" 
the unanimous judgment of the Senate that it is in the 
highest degree for the public interest, and yet the Presi- 
dent is as free when it is sent back to the White House 
with resolution of ratification attached, to put it in his 
desk never again to see the light of day as he was free 
to determine in the first instance whether he would or 
would not negotiate it. That power is not expressly given 
to the President by the Constitution, but it inheres in the 
executive power which inheres in him as the sole organ 
under the Constitution through whom our foreign rela- 
tions and diplomatic intercourse are conducted. Out of 
public necessity the President should be permitted to 
pocket a treaty, no matter if every member of the Senate 
thought he ought to exchange the ratification. Why? 
Because the President, through the ambassadors, minis- 
ters, consuls, and all of the agencies of the Government, 
explores sources of information everywhere, it is his busi- 
ness to know whether anything has occurred since the 
Senate acted upon the treaty which would render it for 
the public interest that the ratifications be not exchanged. 
And he is empowered to withhold exchange of ratifica- 
tions, if upon later knowledge he deems it for the public 
interest so to do. 



176 THE PRESIDENT'S CONTROL 

The conduct of our foreign relations is a function 
which requires quick initiative, and the Senate is often 
in vacation. It is a power that requires celerity. One 
course of action may be demanded to-night, another in 
the morning. It requires also secrecy; and that element 
is not omitted by the commentators on the Constitution 
as having been deemed by the framers of the most vital 
importance. It is too obvious to make elaboration par- 
donable. 

We ratified the arbitration treaty unanimously, I be- 
lieve. The President, in the exercise of the power which 
no one can dispute, pocketed it. The President may ne- 
gotiate and sign a proposed treaty, and not send it to 
the Senate. In such case what would be thought of a 
resolution asking him to inform the Senate whether he 
had negotiated such a proposed treaty, and why he had 
not sent it to the Senate? Having sent a treaty to the 
Senate, he may withdraw it the next day. 

Mr. President, the three great coordinate branches of 
this Government are made by the Constitution inde- 
pendent of each other except where the Constitution 
provides otherwise. We have no right to assume the 
exercise of any judicial functions. The President may 
not assume judicial functions. The President may not 
assume legislative functions. We as the Senate, a part 
of the treaty-making power, have no more right under 
the Constitution to invade the prerogative of the Presi- 
dent to deal with our foreign relations, to conduct them, 
to negotiate treaties, and that is not all — the conduct of 
our foreign relations is not limited to the negotiation of 
treaties — we have no more right under the Constitution 
to invade that prerogative than he has to invade the pre- 
rogative of legislation. . . . 

The act creating the Department of State, in 1789, 
was an exception to the acts creating the other Depart- 
ments of the Government. I will not stop to refer to 
the language of it or to any of the discussions in regard 
to it, but it is a Department that is not required to make 
any reports to Congress. It is a Department which from 
the beginning the Senate has never assumed the right to 



OF FOREIGN RELATIONS 177 

direct or control, except as to clearly defined matters 
relating to duties imposed by statute and not connected 
with the conduct of our foreign relations. 

We direct all the other heads of Departments to trans- 
mit to the Senate designated papers or information. We 
do not address directions to the Secretary of State, nor 
do we direct requests, even, to the Secretary of State. 
We direct requests to the real head of that Department, 
the President of the United States, and, as a matter of 
courtesy, we add the qualifying words, "if in his judg- 
ment not incompatible with the public interest.'' 

What does the conduct of our foreign relations in- 
volve? Does it involve simply, do Senators think, the 
negotiation of treaties? It involves keeping a watchful 
eye upon every point under the bending sky where an 
American interest is involved, where the American flag 
and citizens of the United States are to be found on 
sea and on land, every movement in foreign courts which 
might invade some American interest. It involves inter- 
course, oral and written, conferences, administrative 
agreements and understandings, not included in the 
generic word "treaty," as used in the Constitution. All 
treaties are agreements, but all international agreements 
and understandings are not "treaties." . . . 

My friend from Georgia [Mr. Bacon] seemed to think 
it extraordinary and novel that the President in exercising 
this constitutional power to conduct our foreign relations, 
should send delegates or representatives to the Moroccan 
conference. Where can there be found any warrant for 
denying that right ? I think the Senator did not deny the 
right. We have been engaged in conferences before. 

Mr. Bacon. Mr. President — 

The Vice-President. Does the Senator from Wiscon- 
sin yield to the Senator from Georgia ? 

Mr. Spooner. Certainly. 

Mr. Bacon. I do not desire to interrupt the Senator. 

Mr. Spooner. I have no objection. 

Mr. Bacon. I desire not to do so. I prefer to answer 
the Senator afterwards, if I have an opportunity, rather 
than to take it up by piecemeal. . . . 



178 THE PRESIDENT'S CONTROL 

SPEECH OF SENATOR BACON^ 

Mr. President: I have already addressed the Senate 
at some length upon the subject of the policy and pro- 
priety of sending delegates to the Algeciras Moroccan 
conference. It had not been my purpose to ask again 
the indulgence of the Senate upon this subject or upon 
questions which are nearly connected therewith. It has, 
however, happened that in the progress of the debate 
upon that subject and also on the subject of the Santo 
Domingo treaty certain propositions have been announced 
on the floor of the Senate and have been very earnestly 
and very ably discussed by learned and distinguished 
Senators, magnifying the powers of the President and 
minimizing the powers of the Senate, to which I can not 
give my assent and to which I ask the further indulgence 
of the Senate that I may make reply. . . . 

The distinguished Senator from Wisconsin [Mr. 
Spooner] announces, as I understand him, the following 
proposition: That the negotiation of a proposed treaty 
and every phase of the work of considering and deter- 
mining what shall be the subject and, terms of a treaty 
are, up to and including the reaching of an agreement 
with a foreign power and until the proposed treaty is 
submitted to the Senate for final ratification or rejection, 
matters within the sole and exclusive right and power 
of the President; and that the jurisdiction of the Senate 
does not attach in any manner, and that no power or 
duty or right of the Senate begins until the President 
shall have negotiated a proposed treaty with a foreign 
power, shall have agreed with the foreign power on the 
terms of the same, and shall have sent it to the Senate; 
and that for the Senate to attempt either by inquiry or 
suggestion to have part or lot in such work prior to the 
submission to the Senate, is an intrusion upon the ex- 
clusive domain and jurisdiction of the President of the 
United States. 

As to whether or not he is correct in that construction 
of the powers of the President and the want of the power 
in the Senate, must depend upon the language of the 

3/&. (XL, Pt. 3), pp. 2125-48, passim. 



OF FOREIGN RELATIONS 179 

Constitution of the United States. Fortunately, so much 
of the language of the Constitution as relates to that is 
within a very small compass; it is in one sentence. It is 
the second paragraph of the second section of the second 
article of the Constitution, and it is in these words : 

"He shall have Power," — 

Speaking of the President of the United States— 

"He shall have Power by and with the Advice and 
Consent of the Senate to make Treaties, provided two- 
thirds of the Senators present concur." 

That is all there is in the Constitution as to the power 
of the President to make treaties and as to the right and 
power of the Senate to participate in the work of making 
treaties. 

Now, Mr. President, it will be seen that in that lan- 
guage the word "negotiate'' does not occur. There is 
no separate, express grant of power to negotiate a treaty. 
It is necessarily true, however, that the power to negotiate 
a treaty is an implied power involved in that language; 
in other words, the power "to make" a treaty necessarily 
implies the power to negotiate a treaty. But there may 
be a very great difference in opinion as to what is the 
meaning of the word "negotiate," if we assume it and 
concede it to be an implied power found in that language. 
So far as the power to suggest a treaty to a foreign power 
is concerned, or to receive a suggestion from a foreign 
power that a certain treaty should be made, or to discuss 
with a foreign power the subject or the terms of a pro- 
posed treaty, undoubtedly the power to negotiate within 
that narrow limit is one which can only be exercised by 
the President, because he alone under this clause can 
have direct communication with the foreign power. No 
other officer or authority on the part of the United States 
can submit a proposed treaty to a foreign power. No 
other authority can discuss with a foreign power the 
terms of a proposed treaty, or come to a preliminary 
agreement with the foreign power regarding the same. 
Within this restricted sense the implied power to nego- 
tiate a proposed treaty is in the President alone. 

But it is evident that the learned Senator in this dis- 



i8o THE PRESIDENT'S CONTROL 

cussion does not confine his understanding of the word 
"negotiate" to such narrow Hmits in defining the power 
of the President in the making of treaties. Evidently 
the Senator intends to include in the exclusive power to 
"negotiate" a proposed treaty, the exclusive power to dp 
everything connected with the policy or impolicy of a 
treaty prior to its actual submission to the Senate for 
its ratification. In other words, the Senator's proposi- 
tion is that under this impHed power to "negotiate" every- 
thing in the way of consideration of the advantage or 
the disadvantage, or of the propriety or the policy of 
making a treaty, or of its terms, is a matter for the ex- 
clusive suggestion and deliberation and determination of 
the President, and that any suggestion or inquiry or ad- 
vice on the part of the Senate prior to such submission 
is gratuitous and intrusive, and, as has been suggested, 
even insulting to the President. The radical and extreme 
position of the Senator in this regard is best understood 
when the fact is known that his utterance above quoted 
is caused by the introduction of a resolution asking in- 
formation concerning the instructions given to the dele- 
gates appointed to the Algeciras conference. That 
resolution the Senator condemns as intrusive upon the 
exclusive jurisdiction of the President. According to 
the contention of the learned Senator, alone in the brain 
of the President, alone in his suggestion and deliberation, 
and alone in his judgment must be evolved and shaped up 
the policies and measures, which, if they become law, 
are to be the supreme law of the land. 

According to that contention, the Senate has nothing 
to do with it — ^no concern, no right to consider, no right 
to be heard, no right to inquire, no right to advise — 
until the President shall have thus perfected it accord- 
ing to his judgment and submitted it to the Senate, to 
receive at its hands a perfunctory — often, I should say, 
a perfunctory — reply of "yes" or "no"; and according 
to that contention to proceed beyond that is an intrusion 
upon the exclusive domain and jurisdiction of the 
President. 

Mr. President, that proposition is not sustained either 



OF FOREIGN RELATIONS i8i 

by the letter or by the spirit of the Constitution or by 
the history of the treaty-making power as found in the 
history of the convention which framed the Constitution. 
On the contrary, they all, and the history as well of the 
adoption of this provision of the Constitution as found 
in the debates of the constitutional convention, combine 
to establish the proposition that in the making of treaties 
it is proper for the Senate to advise at all stages. Upon 
the very surface of it lies the oft-repeated suggestion 
that, if that were the case, the Constitution would limit 
itself to the term "consent." 

Mr. Spooner. Limit itself to what? 

Mr. Bacon. I say, if that were the correct construc- 
tion, there is the oft-repeated suggestion that if it had 
been the intention of the framers of the Constitution to 
limit the action and function of the Senate solely to the 
power to ratify or to reject, the language of the Consti- 
tution would not have been "advise and consent,'' but the 
language would have been "consent," because there is 
no reason why the word "advise" should be given to add 
to or explain the meaning of the word "consent.^' We 
do not advise men after they have made up their minds 
and after they have acted ; we advise men while they are 
considering, while they are deliberating, and before they 
have determined, and before they have acted. 

As I have already said, Mr. President, there is no 
direct, express, separate grant of power to negotiate. 
The entire power is the power to make treaties ; and yet 
the learned Senator would have us divide that power so 
that the term "to make" should be construed to mean, 
in the first place, in one division "to negotiate'' and in 
another division "to conclude." But there is nothing in 
the words of the Constitution to justify any such division 
as that. It is one indivisible power "to make," and in 
the entire power "to make" the Senate is given full 
participation in advising and consenting. 

The contention that the power of the President in- 
cludes everything up to the time of the submission of 
the proposed treaty ot the Senate might be sustained if 
the language of the Constitution were that "the President 



i82 THE PRESIDENT'S CONTROL 

of the United States should have power to negotiate and, 
with the advice and consent of the Senate, to make 
treaties." Then it would indicate a separate function; 
then it would indicate a first division of the duty, to 
negotiate, the jurisdiction of which was confided entirely 
and solely to the President; and the second division, to 
make, one in which the President and the Senate together 
should act. 

But the language of the Constitution is, "He shall have 
power, by and with the consent of the Senate, to make 
treaties,'' which plainly indicates not that the Senate 
should be limited to saying yes or no to a perfected and 
finished work when presented to it by the President, but 
rather the assistance of the Senate, the advice and co- 
operation of the Senate in the determination as to the 
propriety and policies of proposed treaties and also the 
terms and provisions they should contain. But the word 
"negotiate" is omitted before the words "to make." That 
is not an accidental omission. There was design in it. 
Aside from the fact that there is no ground upon which 
to predicate the suggestion that it was an accidental 
omission, the words used by the framers of the Constitu- 
tion in the very next clause really only divided from it 
by a semicolon, prove that they were weighing carefully 
the language when they conferred the power upon the 
President of the United States. Separated from it only 
by a semicolon is this language — I will read the entire 
clause, part of which I have already read: 

"He shall have power, by and with the advice and con- 
sent of the Senate, to make treaties, provided two-thirds 
of the Senators present concur;" — 

Then follows the semicolon. Then the language pro- 
ceeds : 

"and he shall nominate, and by and with the advice and 
consent of the Senate, shall appoint ambassadors," etc. 

There it was the evidently distinct purpose to divide 
the duty and to confer in the first part of that division 
an exclusive function and jurisdiction upon the President 
of the United States: 

"He shall nominate, and by and with the advice and 
consent of the Senate, shall appoint." 



OF FOREIGN RELATIONS 183 

Showing that the purpose was that up to the time it 
was submitted to the Senate, the Senate had no function 
in the matter of appointment, and that the function of 
the Senate was Hmited to advising and consenting to the 
nomination previously made by the President in the dis- 
charge of a function and of a jurisdiction exclusively 
confided to him.* 

Can it be said that the framers of the Constitution of 
the United States in writing a clause, or two parts of 
the same clause, were careless in the use of language 
when they were conferring the great power of treaty 
making; that they intended to say that the President 
should have the exclusive function up to the time of the 
submission of the treaty to the Senate, and that the duty 
and the power of the Senate, as the Senator from Wis- 
consin has said, should only begin when the President 
had so done, and that they used this language as found 
in the Constitution, leaving to be implied only the con- 
struction contended for; and then thereafter, in the less 
important matter of the appointing of officers, should 
have been critical in the use of language, leaving nothing 
to implication, and should have said "he shall nominate," 
and then added "and thereafter" — I interpolate the word 
"thereafter" — "and thereafter, by and with the advice 
and consent of the Senate, shall appoint"? Mr. Presi- 
dent, it is incredible. . . . 

The Senator from Wisconsin in his argument said that 
the President was supreme — he used the word "supreme'' 
— in the making of treaties to the extent that even after 
a treaty was submitted to the Senate and ratified by the 
Senate, the President could put it in his pocket and not 
promulgate it or exchange ratifications. 

No doubt that is true, and in the same way when the 
President sends a proposed treaty to the Senate, the Sen- 
ate, if it sees proper to do so, can treat it without any 
attention whatever and not even refer it to a committee. 

*This argument suggests another directly against Senator Ba- 
con's main contention, since it is apparent that in connection 
with appointments the Senate's function of "advice and consent" 
is discharged by a mere "yes" or "no." 



i84 THE PRESIDENT'S CONTROL 

It would not be seemly to do so, but no more so than for 
a President to be likewise heedless and regardless of the 
views of the Senate in reference to the propriety or the 
policy of making a proposed treaty in a matter touching 
vitally the interests and the institutions of the country. 
It would be not less unseemly for him to reply to an in- 
quiry or suggestion of the Senate, "Hands off." 

In what particular is the power of the President thus 
to put a treaty ratified by the Senate in his pocket more 
supreme than the power of the Senate to bury in its 
archives without action a proposed treaty sent to it by 
the President? I am not detracting from the President 
or his power; I concede to him his full constitutional 
power; but I deny the proposition that the President has 
any superior power or any superior dignity in the making 
of a treaty over and above the Senate. 

Mr. Beveridge. Suppose the Constitution had been 
silent upon the question of the treaty-making power, 
where would that power have lodged ? Or I will put the 
question in this way: Suppose the Constitution had said 
nothing about making treaties, would not the complete 
power of making treaties have been in the President, 
under section i of Article II, which lodges the executive 
power in the President? 

Mr. Bacon. I think not. I do not understand the 
word "executive" to mean anything of the kind. 

Mr. Beveridge. Does not the Senator think that in 
the natural division of the powers of Government into 
legislative, executive, and judicial the treaty-making 
power has always been considered an executive function, 
and, therefore, if the Constitution had been silent upon 
the subject of treaties, it would have been completely 
under the President's control, xmder that provision of 
the Constitution which confides in the President the ex- 
ecutive power, and that that section concerning treaties 
is merely a limitation upon that universal power? 

Mr. Bacon. Oh, no. The Senator has gone to his 
favorite doctrine as to extraconstitutional power, which 
I will not stop to discuss with him to-day. The two con- 
tinents, separated by the Atlantic Ocean, are not wider 



OF FOREIGN RELATIONS 185 

apart than the Senator and I upon the subject of the 
exercise of powers not found in the Constitution. . . . 

Mr. Beveridge. I will ask this question : If the Con- 
stitution had said nothing about the treaty-making power, 
where would the treaty-making power have been lodged? 

Mr. Bacon. I have received that question from the 
Senator several times. I have said that I did not agree 
with him that it would be with the Executive. 

Mr. Beveridge. Where would it be? 

Mr. Bacon. I think, undoubtedly, in the legislative 
branch of the Government, for reasons which I will give. 

Mr. Beveridge. That is the whole question. 

Mr. Bacon. Here is where the sovereignty of the Gov- 
ernment was intended to be in almost its totality — in the 
legislative branch of the Government, and the vast array 
of powers in the first article of the Constitution proves 
it ; and, further than that, the Constitution of the United 
States was intended to take the place of and to supersede 
the Articles of Confederation, under which articles the 
power to make treaties did lodge in Congress alone ; and 
it was not to be presumed when the Constitution was 
formed, in the absence of some special and particular 
designation, that it was the intention to confer it upon the 
Executive. The presumption would be the other way. . . .^ 

Mr. President, we have often had cited the fact that 
Washington during his Administration met personally 
with the Senate to advise as to the making of treaties. 
He had been present during all the deliberations of that 
Convention; he was president of the Convention which 
made the Constitution ; he had heard all the deliberations ; 
he had doubtless in personal interviews canvassed this 
matter and discussed it with members of the Convention, 
and the fact that he met personally with the Senate, the 
fact that he conferred personally with the Senate as to 
the propriety of making treaties before attempting to 

5 Senator Bacon here ignores the fact that the Congress of the 
Confederation possessed all the executive as well as the legisla- 
tive powers of the United States. The question, therefore, 
whether the treaty making power is executive in Its nature is 
not affected by its location in the Articles of Confederation. 



i86 THE PRESIDENT'S CONTROL 

negotiate them, show what he understood to be the in- 
tention of the Convention — that the Senate should be 
not simply the body to say yes or no to the President 
when he proposed a treaty, but that the Senate should 
be the adviser of the President whether he should at- 
tempt to negotiate a treaty. What possible doubt can 
there be under such circumstances as to what was his 
understanding of the purpose and intention of those who 
framed the Constitution? And what possible doubt can 
there be that his understanding was correct? 

Mr. President, it is true that that practice has been 
abandoned, so far as concerns the President coming in 
person to sit in a chair on the right of the presiding 
officer to confer with members of the Senate, as our rules 
still provide he shall do should he come here personally, 
showing we recognize the propriety of his coming and 
his right to come. But nevertheless during my official 
term it has been the practice of Presidents and Secre- 
taries of State to confer with Senators as to the propriety 
of negotiating or attempting to negotiate a treaty. 

I know in my own experience that it was the frequent 
practice of Secretary Hay, not simply after a proposed 
treaty had been negotiated, but before he had ever con- 
ferred with the representatives of the foreign power, to 
seek to have conferences with Senators to know what 
they thought of such and such a proposition; and, if 
the subject-matter was a proper matter for negotiation, 
what Senators thought as to certain provisions; and 
he advised with them as to what provisions should be 
incorporated. 

I recollect two treaties in particular. One is the gen- 
eral arbitration treaty. I do not know whether he con- 
ferred with all Senators, but I think he did. I think he 
conferred with every Senator in this Chamber, either in 
writing or in person, as to the general arbitration treaty. 
He certainly conferred with me. 

Mr. Spooner. Who did? 

Mr. Bacon, Mr. Hay. He certainly conferred with 
me, not only once but several times, and I presume he did 
the same with other Senators, not simply as to the ques- 



OF FOREIGN RELATIONS 187 

tion whether a treaty should be negotiated, but as to 
what provisions should be incorporated in it. I am sorry 
to say that while agreeing with the purpose in view I 
could not agree with some of the provisions incorporated 
in that particular treaty, and he went on and the treaty 
was formulated with which in all particulars I did not 
agree. But I am simply speaking of the fact that he 
conferred with Senators before he formulated a treaty, 
not simply before the President sent it here, not simply 
before it was negotiated with Sir Mortimer Durand and 
the ambassadors of other countries, but before it had 
been formulated. 

Then, as to another, I recollect distinctly the Alaskan 
treaty. Time after time and time after time Mr. Hay, 
then Secretary of State, conferred with Senators, and, 
I presume, with all the Senators, as to the propriety of 
endeavoring to make that treaty and as to the various 
provisions which should be incorporated in it, recog- 
nizing the delicacy of the situation, and the provisions 
of that treaty were well understood by members of the 
Senate and approved by members of the Senate before 
it was ever formulated and submitted to Sir Michael 
Herbert. 

But what was Mr. Hay doing in all that time? Was 
he carrying out the contemplation of the Constitution? 
Was he engaged in the performance of a high duty? 
Was he availing himself of a valuable instrumentality, 
or was he simply engaged in the interchange of polite- 
ness? 

Mr. Spooner. Will the Senator permit me to make 
an inquiry of him? 

Mr. Bacon. With pleasure. 

Mr. Spooner. Does the Senator conceive of no dis- 
tinction between consultation by the Secretary of State, 
if he so wills it, with Senators, and the participation of 
the Senate, as a body, the thing of which we are speak- 
ing, as a part of the negotiating power? ... 

Mr. Bacon. Well, I will answer the Senator definitely. 
I do not recognize the distinction, and I will tell him 
the reason why. 



i88 THE PRESIDENT'S CONTROL 

When the President or the Secretary of State either — 
say, the President, to simpHfy it — asks a Senator what 
he thinks about the proposition to negotiate such and 
such a treaty, and what he thinks as to the specific terms 
to be incorporated in that treaty, he does not ask that 
Senator that question as he asks Mr. Jones or Mr. Smith, 
whom he happens to meet upon the Avenue, in order 
that he may have the advantage of advice and assistance 
from a man in whose intellectual processes and capacity 
he has confidence, but he asks him because of the fact 
that the Constitution makes the Senator his adviser, his 
constitutional, ofiicial adviser and counselor in the mak- 
ing of treaties.^ 

Now, Mr. President, if that is true, is that advice 
something which the President has exclusively within 
his control ? Is it something which he can ask, and which 
he alone can get the benefit of in case he does ask, or 
is it a great constitutional provision which makes it a 
reciprocal right for a common benefit? 
/ Can it be said that while it is proper for Senators or 
the Senate to respond when advice is asked, it is im- 
proper, under the constitutional provision, to volunteer 
such advice? It is undoubtedly true that the President 
alone determines whether he will approve and act upon 
the advice of the Senate, just as the Senate determines 
whether it will or will not approve a proposed treaty. 
But can it be contended that the Senate, although the 
constitutional adviser of the President, can only give 
advice when asked for it, and that it is an intrusion to 
proffer it when thus not asked for it? Where is the 
warrant in the Constitution for such contention? That 
it has not been so recognized by the President or by the 
Senate is shown by the fact that it has frequently hap- 
pened that resolutions have frequently been passed by 
the Senate informing the President that the Senate would 
approve a treaty for a given purpose. Can it be said 

®This argument is childish. If the President may obtain the 
Senate's advice by informal conferences, with individual Sen- 
ators, why may he not thus obtain its consent to a proposed 
treaty? 



OF FOREIGN RELATIONS 189 

that while proper to thus notify the President, in ad- 
vance, of what the Senate would approve in a treaty, 
it is improper to notify him also, in advance, of what it 
deprecates, if it is proposed to embody it in a treaty? 
Can it be proper for the Senate to offer advice or counsel 
to the President as to the policy or impoHcy of a pro- 
posed treaty, and at the same time improper to ask for 
the information upon which to base such advice or coun- 
sel ? Where is the logic of such a contention ? 

Again, can it be proper to advise the President as to 
the desirability and policy of negotiating a treaty where 
he has not taken any action relative thereto and where 
the suggestion originates with the Senate, and on the 
other hand be improper to advise him of the undesira- 
bility and impolicy, in the opinion of the Senate, in a 
case where it is reliably learned through other sources 
that he has begun to take or has taken action relative 
thereto? Where does the Senate get power to amend 
a treaty if its authority is limited to consenting to what 
the President has done? When the Senate has amended 
a proposed treaty and the President thereafter submits 
the amendment to the foreign power for its considera- 
tion, has not the Senate taken part in the negotiation 
of that treaty? 

If the contention is correct that the jurisdiction and 
power of the Senate do not begin until the proposed 
treaty is sent to the Senate, then none of these things 
are proper, and to make an inquiry of the President rela- 
tive to a proposed treaty is an intrusion upon his ex- 
clusive jurisdiction. If the contention is correct, it 
matters not what may be the well understood purpose 
of an Executive in negotiating a treaty or in sending 
delegates to a conference, the Senate is dumb until it 
receives a proposed treaty. It may be, as forcefully sug- 
gested by the Senator from Maine [Mr. Hale] a few 
days ago, that the proceeding tends inevitably to war, 
and yet it will be an intrusion for the Senate to even 
make an inquiry of the Executive concerning the same. 

Again, the Executive may, without ever sending any 
proposed treaty to the Senate, continue to send delegates 



I90 THE PRESIDENT'S CONTROL 

to European international political conferences, and in 
time practically destroy our recognition of the long 
established doctrine of non-entanglement by us in such 
disputes. After having taken an active part by our dele- 
gates in the Algeciras conference, no proposed treaty 
may be submitted to the Senate. Nor is that all in sight. 
We are told in the press despatches that European ques- 
tions concerning the Balkan States are again becoming 
acute ; that there is great tension, and that another Euro- 
pean war cloud is gathering in the East. Doubtless there 
will be another conference to deal with that situation and 
determine the relative rights and powers of the war lords 
of Europe. To that, according to the new doctrine, it 
will again be in order to send delegates from the United 
States. And after having taken an active part in the 
deliberations of the conference, again no proposed treaty 
may be sent to the Senate. And although in attending 
each of these conferences by our delegates tremendous 
strides will have been taken in establishing precedents 
and in destroying the doctrine of an hundred years 
against entanglements in European international disputes, 
still in the absence of any proposed treaty submitted, 
the Senate must be dumb, and it is an intrusion to even 
make an inquiry of the President in the interest of the 
preservation of the cherished policies of our country. 
,Mr. President, I can not subscribe to such a doctrine. . . . 

The Senator from Wisconsin, in order to accentuate 
and emphasize the fact that the President of the United 
States sat away up on a pedestal above us in all matters 
which related to treaty making, except the simple mat- 
ter, as he himself expressed it, of "ratification," because 
he translates the words "advice and consent" as meaning 
in the common parlance "ratification," the Senator^ I say, 
in order to emphasize that fact, goes further, ancTin the 
clauses of his speech which I have already read he puts 
up as the supreme power, the supreme controller in all 
foreign affairs, the President of the United States. The 
President, according to the Senator from Wisconsin, in 
all of our foreign affairs is supreme. . . . 

What is the most important of all foreign relations? 



OF FOREIGN RELATIONS 191 

Why, the most important of all foreign relations is the 
relation of peace and war. Can the President declare 
war? Can the President prevent a declaration of war? 
The President not only can not declare war, and it is 
not only conferred in terms upon Congress, but even if 
the President should be opposed to a proposed war, two- 
thirds of each Branch can declare war. It would not 
require his approval. There is the most important of 
all foreign relations. It does not belong to the President. 
Nor can the President alone make peace. He can only 
do so with the cooperation of the Senate. 

The question of commerce is certainly an important 
matter of relation between two countries, and yet the 
President has no power over commerce with foreign 
nations. The power to regulate commerce is not simply 
withheld from the President, but it is expressly conferred 
upon Congress; and the subsidiary question as to what 
shall be the terms upon which the merchandise of a for- 
eign country shall come to this country is a question 
largely important in foreign relations, and is one over 
which the President of the United States has no power. 
It belongs, under the Constitution, to the lawmaking 
power; and that lawmaking power can be exercised by 
Congress not only without the consent of the President, 
but over his objection. 

The terms upon which foreign ships shall be allowed 
to enter our ports to do business with us is an important 
one in our foreign relations, but the power to fix and 
determine them is altogether with Congress. 

The question as to whether or not citizens of another 
country shall be allowed to come to this country, and 
if so, upon what terms, is an important question of for- 
eign relations ; and yet the President has^ no power to 
control it. It is a question exclusively within the law- 
making power. The question whether this country will 
permit any of a certain nationality to come at all to this 
country is a question not with the President, but a ques- 
tion with the lawmaking power. 

Nay, sir, the question whether this Government will 
hold any relations with a foreign country is a question 



192 THE PRESIDENT'S CONTROL 

with Congress. It is entirely within the competency of 
Congress to pass a law that no citizen of a given country 
shall come to this country, that no goods shall be re- 
ceived from it, that no merchandise shall go from this 
country to it, that no letters shall come from it, that 
there shall be no intercommunication of any kind what- 
ever. Who doubts the power of Congress to do so? 

In other words, it is within the power of Congress 
to absolutely sunder the relations between this country 
and any given foreign country. When that is said the 
whole thing is said ; when that is said the whole argument 
is exhausted as to where rests the supreme power in 
foreign affairs, because the whole must include every 
part. If it is within the power of Congress to absolutely 
sunder all relations of every kind, commercial, social, 
political, diplomatic, and of every other nature, it is cer- 
tainly within the power of Congress to regulate and con- 
trol every question subsidiary to that and included within 
it. Congress and not the President is supreme under 
the Constitution in the control of our foreign affairs.^ 

Now, Mr. President, there is but one question about 
which there is even any controversy as to the power of 
the President over foreign relations, and that is the one 
about which the Senator and myself have differed for 
years, and about which I presume we will continue to 
differ. It is as to the right of the President of the United 
States to finally recognize or finally refuse to recog- 
nize the independence of a revolutionary or rebellious 
country. 

Of course, time does not permit me now to discuss 
that question at length. I have heretofore discussed it 
in the Senate, and while I am not very fond of labor, 
if the time shall ever come when that question is per se 
discussed, I shall endeavor to take my part in it, for it 

"^ This is a non-sequitur. Congress, in the exercise of certain 
of its powers, can often determine the essential conditions of our 
foreign relations, but that fact does not determine the question 
of law — ^the question of direct control. Senator Bacon's argu- 
ment can be reversed to prove that the President can regulats 
commerce. Cf. pp. 36-37, supra. 



OF FOREIGN RELATIONS 193 

is a most interesting and important question. It is a 
niatter to me of the strongest and most absolute con- 
viction as a legal proposition. Of course, I do not ques- 
tion at all that where it is a question as to what is the 
de facto government in a fully independent country, that 
is a question which is practically determined by the 
President of the United States in the recognition of 
diplomatic relations, but where a country is in a condi- 
tion of rebellion, which has asserted its independence 
and is endeavoring to establish its independence, and 
where the parent country is denying its independence 
and is by the force of arms endeavoring to put down 
the rebellion or the insurrection, to say that the Presi- 
dent of the United States solely and alone can determine 
finally that question for this country, and that Congress 
has no power over it, is a matter to me absolutely without 
the domain of logic. I say in every act of that kind, the 
supreme power, the final power of decision, is with Con- 
gress, the lawmaking power, and whatever is done by 
the executive department in that regard is necessarily 
subject to the revision and control and reversal of the 
lawmaking power. 

Why, Mr. President, we have seen in the papers that 
a province of Russia some month or two ago rebelled 
and set up an independent government, or, rather, pro- 
fessed to do so. We have heard nothing of it lately. 
I presume it has been suppressed. Suppose in a case 
of that kind, not this President, but any President, had 
taken upon himself to say, "I recognize that province 
as an independent government." To claim that that would 
have been a final, conclusive act on the part of the Gov- 
ernment of the United States, and that Congress would 
in such case have no right or power to reverse the de- 
cision and save the country from war with Russia, is 
something to me, I say, beyond the possibility of com- 
prehension. But I will not go into that argument now, 
because I know I would necessarily enter upon a field 
which in itself would be larger really, or as large, as the 
main one upon which I am now engaged in this dis- 
cussion. 



194 THE PRESIDENT'S CONTROL 

Mr. Spooner. Will the Senator allow me to ask him 
a question? 

The Presiding Officer (Mr. McCumber in the chair). 
Does the Senator from Georgia yield to the Senator from 
Wisconsin ? 

Mr. Bacon. Certainly. 

Mr. Spooner. The Constitution gives to the President 
the power to receive ambassadors and ministers. Does 
the Senator think that the action of the President in the 
exercise of that function is subject to the control of 
Congress ? 

Mr. Bacon. I have not the slightest doubt in the world 
that Congress, in such a case as I have just mentioned, 
could pass a law and send that ambassador back to the 
country from which he came. 

Mr. Spooner. What sort of a law would that be? 
I am not talking now about declaring war or severing 
diplomatic relations. ... 

Mr. Bacon. Simply to say we would not have an 
ambassador at all from that country, because we did 
not recognize it as an independent country. That is the 
act of Congress I have in mind when I say it would 
control the President and reverse his decision recognizing 
that province as an independent nation. 

Now, as to whether or not Congress should say to the 
President of the United States, You must not receive 
John Jones, or William Smith, or any other particular 
man from any particular country. Of course nobody 
contends Congress could do that. That is not the ques- 
tion at all. It is the question whether in the case where 
a country, or part of a country in rebellion to the mother 
country sets up a professed or pretended independent 
government and sends an ambassador to this country, 
the reception by the President of the United States of 
that ambassador is a conclusive and final determination 
on the part of the Government of the United States that 
henceforth there shall be no question but what that is an 
independent country so far as the recognition of this 
country is concerned. My reply to. the Senator is that 
if such an ambassador were sent, Congress would have 



OF FOREIGN RELATIONS 195 

it^ within its power to pass a law that it would not recog- 
nize it as a part of Russia, for instance, and when that 
law was passed it would be the duty of the President 
to give that ambassador his passports and no longer 
recognize him or any other as an ambassador from that 
pretended government. . . .^ 

Mr. Bacon. Compared to this great array of sovereign 
powers granted to Congress, those conferred upon the 
President present a most striking contrast. He is clothed 
with the great power and responsibility of the execution 
of the laws, but beyond this the only prerogative of sov- 
ereignty with which he is exclusively invested is the 
pardoning power, and even that is denied to him in 
cases of impeachment by the House and conviction by 
the Senate. . . . 

The greatness of the Presidential office does not con- 
sist in his will being the law to 80,000,000 people, but 
in the fact that the President in himself personifies the 
will of a great and free people as that will is expressed 
by them through another department of the Government. 
No man can shut his eyes to the fact that to that end, 
while they invested the President with all the great dig- 
nity and power of the Executive office, they carefully 
withheld from him the grant of the powers of sover- 
eignty. Every power given to him was most carefully 
restricted and guarded. 

While they gave him the power of the veto, they gave 
the Congress the power to override his veto by a two- 
thirds vote of each House. 

While they gave him the power to make treaties with 
foreign nations, by and with the advice of the Senate, 
they refused to him the power to make such treaties 
without their sanction. 

They gave him power to pardon those convicted of 

8 It is to be regretted that Senator Bacon did not mention by 
virtue of which of its powers Congress would have the right to 
pass such a "law." Of course nobody contends that the Presi- 
dent's action would legally prejudice Congress in the exercise 
of any of its powers. 



196 THE PRESIDENT'S CONTROL 

crime, but denied to him the power of pardon in cases 
of impeachment. 

They gave him the power to appoint all civil officers, 
but except temporarily, -when Congress is not in session, 
such appointments are of no validity until confirmed 
by the Senate. 

They made him Commander in Chief of the Army and 
Navy, but they left it to Congress to determine what 
should be the size and constitution of the Army and 
Navy, and whether there should be any Army and Navy. 
They denied him the power to appoint a single officer 
of either the Army or the Navy, from the commanding 
officers to the lowest subalterns, unless each of such ap- 
pointments should receive the confirmation of the Senate. 
They gave him no power to equip and maintain either 
Army or Navy for a day. They gave him no power to 
make war, nor can he of himself conclude peace. The 
power to make rules for the government and regulation 
of the Army and Navy is denied to him and is expressly 
conferred upon Congress. It is evident that as Com- 
mander in Chief of the Army and Navy he is but the 
Executive arm, and that in that capacity he is himself, 
in every detail and particular, subject to the commands 
of the lawmaking power. 

Finally, they made the Chief Executive, as well as 
every other civil officer, from the head of the Cabinet 
to the most obscure civil official, subject to trial and re- 
moval from office, without appeal, upon impeachment 
by the House and conviction by the Senate — a power, 
in much conservatism and wisdom, but seldom exercised, 
but nevertheless a power, resting as it does, without de- 
fined limits as to what shall be deemed a high crime or 
misdemeanor, almost exclusively in the discretion of the 
House and Senate, which is the great safeguard against 
encroachment and official misconduct. . . . 

But what I rose to say to the Senator was this: 
The Senator will read again, as I know he has read 
heretofore, the message, to which I alluded in the re- 
marks which I submitted this morning, of President 
Washington to the House of Representatives, where 



OF FOREIGN RELATIONS 197 

he declined to furnish them with certain information 
which they called for. I am not speaking now as to what 
the President can do, but what he ought to do, and what 
is recognized in him as proper to do. President Wash- 
ington said, that while he refused to communicate it to 
the House, and gave as a reason that such things ought 
frequently to be kept secret, yet in that case he said it 
should be communicated to the Senate. He recognized 
the Senate. He did not say that it should be withheld, 
but he said the secret should be shared by the Senate 
with the President. 

Of course I recognize the fact that the question of 
the President's sending or refusing to send any com- 
munication to the Senate is a matter not to be judged 
by legal right, but a question which has always been 
recognized as one of courtesy between the President and 
this body, and which the Senate — except, perhaps, in the 
case in v>rhich the Senator took a very notable part and 
to which I have had occasion heretofore to allude — has 
always yielded to the judgment of the President in the 
matter and has never made an issue with him about it. 

Mr. Spooner. I go beyond that. 

Mr. Bacon. But any resolution which I have intro- 
duced could have been easily answered by the President 
to the effect that, in his opinion, it was not compatible 
with the public interest; but the Senator and those who 
thought with him never allowed it to get to him. 

Mr. Spooner. If we had adopted the Senator's reso- 
lution, introduced in public, cabled to every court in 
Europe, coming from a distinguished member of the 
Committee on Foreign Relations of this body, which is 
a part of the treaty-making power, and the President 
had communicated to the Senate in secret session, how 
would the matter have stood abroad? If we had been 
honorable men and observed the obligation of secrecy, 
the communication of the President would have been 
confined to members of this body; outside there would 
have been this implied arraignment of the President, or 
disgust of the President, either as to his power or as to 
his wisdom, with no reply whatever from the President. 



198 THE PRESIDENT'S CONTROL 

Mr. Bacon. As it happened in this case, though, the 
State Department gave it out that there was no cause for 
secrecy and that anybody who went there could see it. 

Mr. Spooner. That is not what I am talking about. 

Mr. Bacon. A good many have gone there and have 
seen it. I have not. 

Mr. Spooner. I am talking upon the principle. The 
Senator says "legal right" or "legal duty." I admit that 
we have a right to pass resolutions calling for any in- 
formation from the President; but does the Senator say 
it is the legal duty of the President to send it? 

Mr. Bacon. I do not dispute the fact that there may 
be occasions when the President would not. 

Mr. Spooner. Who is the judge? 

Mr. Bacon. The President, undoubtedly. Nobody has 
ever controverted that; and the very resolution concern- 
ing which the Senator is animadverting was expressly 
conditioned upon the President viewing the transmission 
of the information requested as being compatible with 
the public interest. 

Mr. Spooner. Mr. President, it all comes to an entire 
corroboration by the Senator of the proposition which 
I made the other day, and which I supposed he had spent 
some time in attacking, that in the last analysis, so far 
as the question of constitutional power and constitutional 
duty is concerned, it is absolutely in the President. He 
is the sole organ of communication by this Government 
with foreign governments. At his option he may consult 
the Senate in advance or he may not. At his option he 
may send information requested or he may not. 

The Senator is mistaken when he says that all there 
is upon that subject in the Constitution is that line of 
the sentence which gives the President the power, by 
and with the advice and consent of the Senate, to make 
treaties. That is not all there is in the Constitution upon 
which I rely to sustain the proposition that under our 
system the President is the sole organ of negotiation 
and of communication between this country and foreign 
governments. Under the Confederation the Congress 
was the sole organ; the Congress negotiated treaties and 



OF FOREIGN RELATIONS 199 

ratified treaties; the Congress received ambassadors and 
ministers, and the Congress practically sent ambassadors 
and ministers. 

That was all changed when the Constitution was 
adopted. It was not changed for any idle reason. It 
was changed because it was found to be an inherent, ele- 
mental, and terrific weakness in the Confederation; and 
so, Mr. President, when the Constitution was formed 
they gave to the President, by and with the advice and 
consent of the Senate, the power to make treaties. That 
is not all. They vested in the President alone the power 
to receive ambassadors, ministers, and other diplomatic 
agents. That is not all. They vested in him the power 
to appoint, subject to the advice and consent of the Sen- 
ate as to the person only, am.bassadors, ministers, etc. 

A foreign minister or ambassador comes to this coun- 
try. We have no function to perform in relation to his 
reception. He presents his credentials to the President. 
The President receives him or not as he may decide. 
Can Congress compel his reception or prevent his being 
received by the President ? I never heard that contended 
until the Senator intimated it this afternoon. 

Mr. Bacon. Mr. President, on the contrary, I said 
exactly the reverse. I said this — 

Mr. Spooner. The Senator said they could be sent 
away by order of Congress. 

Mr. Bacon. The Senator pressed me on that and 
asked me how it was done. I said the Congress could 
sunder the diplomatic relations between this country and 
another, and that that would be the law ; but I expressly 
said that where relations were existing between the coun- 
tries, so far as the recognition of a particular ambassa- 
dor was concerned, or another ambassador, that was in 
the power of the President. If the Senator will notice 
the stenographic report, he will find that is exactly 
what I said. 

Mr. Spooner. Could the framers of the Constitution 
any more clearly have made the President the sole organ 
of communication between this Government and foreign 
governments than they did? Of course, the power to 



200 THE PRESIDENT'S CONTROL 

receive an ambassador or a foreign minister implies 
necessarily the power to determine whether the govern- 
ment or country from which he comes is independent 
and entitled to send an ambassador or a minister. So 
the President is authorized to determine, and he must 
determine, when he sends an ambassador or a minister 
to some other country, whether that country is an in- 
dependent country, a member of the family of nations, 
entitled to be represented by an ambassador or minister 
here and entitled to receive an accredited ambassador 
or minister from this country. When the ambassador 
or the minister has any communication to make in rela- 
tion to foreign affairs, he does not make it to the Senate. 
If it be in the negotiation of a treaty — and most treaties 
are negotiated here — he has no communication with the 
Senate. We will not tolerate that ambassadors or min- 
isters or diplomatic agents from other countries shall 
communicate in any way with the Senate or with the 
committees of the Senate. 

Mr. Bacon. The Senator says that with very great 
earnestness. Does the Senator understand that anybody 
has ever suggested such a proposition? 

Mr. Spooner. The Senator implies that almost of 
necessity — 

Mr. Bacon. Oh, no. 

Mr. Spooner. When he argues that under the Con- 
stitution the Senate as an executive body is as much a 
factor in the negotiation of treaties as is the President 
or is any factor at all in negotiation. 

Mr. Bacon. Yes; with its own peculiar functions to 
perform. That does not imply that — ' 

Mr. Spooner. If the Senator does not mean that, then 
the Senator does not mean anything by his proposition. 

Mr. Bacon. The Senator is mistaken; the Senator is 
not justified in that statement. 

Mr. Spooner. Because to say that the Senate is as 
much a factor under the Constitution in negotiating 
treaties as the President — 

Mr. Bacon. I did not say that. 

Mr. Spooner. Then I misunderstood the Senator. 



OF FOREIGN RELATIONS 201 

^ Mr. Bacon. I said in the making of treaties, and I 
distinctly denied that the making of treaties was confined 
to the function which would succeed the transmission of 
that treaty to the Senate. 

Mr. Spooner. Mr. President, I certainly am not mis- 
taken. The whole point of the speech, which I had the 
honor of making the other day, and which the Senator 
has attacked — was my contention that in the negotiation 
of treaties the President is absolutely supreme and inde- 
pendent of the Senate. 

Mr. Spooner rose. 

Mr. Bacon. Pardon me a moment. But if the 
Senator meant to include in the term *'negotation" not 
only that, but everything which related to the framing 
of the treaty the determination of its terms, and every- 
thing else up to the time when it was sent to the Senate, 
then his definition of the term ''negotiation" was too 
broad, and I denied that the President had exclusive 
right in it; but so far as the term "negotiation" could 
be limited to its being the organ of communication and 
of discussion and of original suggestion, if you please, 
to the foreign power, I granted the Senator's position. 

Mr. Spooner. What does the Senator understand by 
the negotiation of a treaty as contradistinguished from 
the making of a treaty; dividing the negotiation of the 
treaty from the point of jurisdiction of the Senate over 
the treaty? 

Mr. Tillman rose. 

Mr. Spooner. If you please, one at a time. 

Mr. Bacon. I said that the Senator's position was 
that "negotiation" included everything up to the time 
the treaty was sent to the Senate; I said that "negotia- 
tion'' was a term which was implied under the term 
"make" ; that the making of a treaty included the entire 
operation by which a treaty was conceived and framed 
and brought to its conclusion, and as to all such matters, 
even before it was submitted to a foreign power, while 
it was under consideration as to whether there should 
be a treaty and what its terms should be — that that was 
a part of the making of a treaty and not a part of what 



202 THE PRESIDENT'S CONTROL 

technically the Senator calls the "negotiation of a treaty." 

Mr. Spooner. It would be nonsense, Mr. President, 
to talk of the President negotiating a treaty and yet of 
his not having the absolute power to reduce to writing 
the terms agreed upon at the end of his negotiation. He 
must have something to lay before the Senate. Is the 
signing of the treaty a matter that the Senate has any- 
thing to do with? Until the President is through the 
Senate's function does not begin. 

I admit that the Senate may ask to be informed as to 
the state of the negotiation. The Senate may ask the 
President to inform it as to its terms. It may request 
him to send a copy in order that it may advise him, if 
it wants to do it, that it should be signed or not, or 
whether it should be amended before being signed. But 
the President has the same right to refuse to do it that 
the Senate has to request it. 

Mr. Bacon. Yes. . . . 

Mr. Spooner. If the framers of the Constitution had 
intended to make the Senate a potential factor in the ne- 
gotiation of treaties, they would have done it. 

Mr. Bacon. I think they have done it. 

Mr. Spooner. They would not have left the President 
entirely at liberty to refuse the Senate any participation, 
even to the extent of informing the Senate, in response 
to a courteous request, of the state of the negotiations 
or the subject-matter of a proposed treaty. They would 
have given the Senate the right to demand, not to re- 
quest. They would have made it the duty, not com- 
pellable by mandamus — no, no ; they would have made it 
the sworn duty of the President to respond to the re- 
quest for information. They did neither, Mr. President. 
It would have been a breach of constitutional duty for 
the President to refuse information which under the 
Constitution the Senate had a right to demand, and the 
President would have been answerable on the complaint 
of the other House. Had they intended not to invest 
the President with the absolute power of the negotiation 
of treaties, they would have made the Senate's power 
efficient. They would not have made it a mere question 



OF FOREIGN RELATIONS 203 

of "U you please, Mr. President, the Senate would like 
to be informed of the status of the negotiation, if any 
exists, between this country and Great Britain." They 
never would have left it in that way. . . . 

It is clear as the sunlight that the f ramers of the Con- 
stitution intended the President should negotiate the 
treaty, for he is the organ of communication with for- 
eign governments. They gave that power to no one 
else, and the Senate could not advise and consent to the 
treaty tmtil it had been negotiated and signed and laid 
before it. Somebody must do that preliminary work. If 
it is not given to the President, it is given to no one. It 
was given to the President. He has done it from the 
foundation of the Government. No one has ever chal- 
lenged it. The Senate, to my knowledge, never has de- 
manded a right to participate in the negotiation of 
treaties. Whenever the President has consulted the Sen- 
ate it has been entirely in the exercise of an option which 
the Constitution gives him. He may exercise it or not. 
He keeps his oath to support and defend the Constitu- 
tion as faithfully in the one case as in the other. The 
great sage of Democracy, Mr. Jefferson, did not agree 
with the Senator from Georgia or the Senator from South 
Carolina — . . . 

I do not know whether it will be any "light" to the 
Senator from South Carolina, but in Mr. Jefferson's 
Opinion on the Powers of the Senate, a very celebrated 
document, which he gave at the request of the President, 
this language was used: 

"The transaction of business with foreign nations is 
executive altogether. It belongs, then, to the head of that 
department, except as to such portions of it as are 
especially submitted to the Senate. Exceptions are to 
be construed strictly." 

That is what Mr. Jefferson said on this precise ques- 
tion in a carefully prepared opinion for the guidance 
of the President, whose Cabinet officer he was. To give 
the opinion was a part of his official duty under the Con- 
stitution. . . . 

He says another thing on the subject of the powers 
of the Senate: 



204 CONTROL OF FOREIGN RELATIONS 

"The Senate is not supposed, by the Constitution, to 
be acquainted with the concerns of the executive depart- 
ment. It was not intended that these should he communi- 
cated to them." 

Senator Bacon's main proposition seems to be that 
the Senate has the right to proffer the President its 
advice at every stage in the negotiation of a treaty. 
No doubt it may; and so may Tom, Dick or Harry. 
Moreover, the President remains free to ignore the 
advice — for such is the nature of advice. The more 
important question is v^hether the Senate, in giving 
advice, is confined to its own information or may re- 
quire additional information from the President. Both 
Senator Bacon and Senator Spooner seem to be agreed 
that whether the President shall furnish the Senate 
with information touching foreign relations rests with 
his discretion. For the rest. Senator Bacon's speech 
is interesting for its statement of the different ways 
in which Congress may, in the exercise of its constitu- 
tional powers, affect our foreign relations, and for the 
indication it gives of the informal contact maintained 
between the President and the Senate through the 
membership of the Foreign Relations Committee. 



CONCLUSION 

The two main principles which continually recur in 
the foregoing pages are : first, the principle that, in 
Jefferson's words, *'the transaction of business with 
foreign nations is executive altogether"; and secondly, 
the principle that Congress is not to be prejudiced con- 
stitutionally in the exercise of its powers by what the 
Executive has done in the exercise of his. Judicially 
enforceable constitutional limitations do not, generally 
speaking, obtain in the field of the diplomatic powers 
of the Government. The result is that the construc- 
tion of these powers has fallen principally to those 
who wield them, and so has not erred on the side of 
strictness; and furthermore, that as between the or- 
gans of government sharing these powers, that organ 
which possesses unity and is capable of acting with 
greatest expedition, secrecy, and fullest knowledge — 
in short, with greatest efficiency — has obtained the 
major participation. Nor can it be reasonably doubted 
that these results have proved beneficial. At the same 
time, they counsel the maintenance in full vigor of the 
political check on a power so little susceptible of legal 
control. 

More in detail, the principal fruits of the doctrine 
that the control of foreign relations is an executive 
prerogative may be summarized thus: an unlimited 
discretion in the President in the recognition of new 

205 



2o6 THE PRESIDENT'S CONTROL 

governments and states; an undefined authority in 
sending special agents abroad, of dubious diplomatic 
status, to negotiate treaties or for other purposes; a 
similarly undefined power to enter into compacts with 
other governments without the participation of the 
Senate; the practically complete and exclusive discre- 
tion in the negotiation of more formal treaties, and in 
their final ratification ; the practically complete and ex- 
clusive initiative in the official formulation of the na- 
tion's foreign policy. The war making powers which 
the President has gradually taken to himself also derive 
partly from this doctrine, but more largely from two 
other sources: first, from the coalescence which took 
place at the time of the Civil War between the Presi- 
dent's agency in the enforcement of the laws and his 
power as Commander-in-Chief of the Army and 
Navy; secondly, from our proximity to weak dis- 
orderly neighbors, who demand rough handling oc- 
casionally but are rarely worth a real war. 

Partially offsetting this accession of powers to the 
Executive are certain practices and principles safe- 
guarding the discretion of Congress. Thus the House 
of Representatives has maintained its right, at least 
formally, to pass upon the merits of treaties before 
assenting to appropriations to carry them out; also 
it has asserted successfully a participation in the 
making of customs agreements. Meanwhile, Congress 
has established its practically exclusive right to abro- 
gate treaties, both in their quality as law of the land 
and as international engagements; and recently it has 
asserted a highly questionable supervision over diplo- 



OF FOREIGN RELATIONS 207 

matic grades. Its alleged right of recognition has, 
however, remained a mere shadow. 

On the whole, therefore, the net result of a century 
and a quarter of contest for power and influence in 
determining the international destinies of the country- 
remains decisively and conspicuously in favor of the 
President. It is an outcome calculated to give pause 
to those who harp so unceasingly at "secret diplo- 
macy," to say nothing of those who would wage wars 
by referendum. For if a nation situated as America 
has been in the past has found it necessary to centre 
the control of its foreign policies more and more in 
the hands of one man, what of European states? One 
may avoid fatalism and yet cherish the conviction that 
historical institutions are seldom correctly assessed in 
indiscriminate abuse. 



INDEX 

Acts of Congress: Act of 1789 organizing the Department of 
State, 38-9; early legislation touching diplomatic grades, 66-7; 
act of 1855 on the same matter, 67-70 ; acts of 1893 and 1909 re- 
specting the appointment of ambassadors, 66; various recent acts 
affecting the diplomatic service, 70 fn. ; act of 1848 regulating 
procedure in extradition cases, 103; act of 1798 abrogating 
existing treaties with France, 111-2; joint resolution of 1846 
authorizing the President to give notice of the termination of 
the Convention of 1827 with Great Britain, 112; "La Follette- 
Furuseth Seamen's Act," 113 f n. ; act of 1913 granting rebates 
to imports in American bottoms, ib.; act of 1792 authorizing 
postal conventions, 117; Section 3 of the McKinley Tariff Act 
authorizing reciprocity agreements, 117; see Congress and 
Treaties. 

Adams, President John: Action of, in the case of Jonathan 
Robbins, 99. 

Adams, J. Q. : "Memoirs" of, quoted, 72-3, 87-8 ; questions raised 
by policy of, as President, respecting the Panama Congress, 
40-1, 56-7, 127; views of, on the subject of the recognition of 
new States, 72-3, 78. 

"Advice and Consent": Significance of the phrase as used in 
the Constitution, 171, 179-83, IQO- 

Algeciras Conference: American attendance at, criticized, 190. 

"Ambassadors and Other Public Ministers": Scope of the term, 
46. See Acts of Congress. 

Arbitration: See Roosevelt and Taft. 

Argentina: See Pretoria. ^ , . , r 1 

Bacon, A. O. (U. S. S.) : Speech by, assertmg the rights of the 
Senate to participate in the negotiation of treaties and empha- 
sizing the powers of Congress, 178-97, 198-202 passim. 

Barbary Pirates : See Jefferson. 

Benton, T. H. (U. S. S.) : Views of, on President Adams s 
Panama Mission, 56-8 ; resolutions of, respecting Tyler's Texan 
policy, 128; speech by, against same, I57- ^. 

Bibb, W. W. (U. S. S.) : Speech of, defending the constitu- 
tional propriety of the Ghent Mission, 51-6. 

"Big Stick" Doctrine, The: A Presidential policy, 126. 

Blaine J. G. (M. C.) : Protest by, against effort of Congress 
to direct the diplomatic policy of the Government, 43. 

Boxer Movement, The: See China. ... 

Buchanan, President: Message of, respecting American action 

209 



2IO INDEX 

in China, 145 ; message of, threatening resistance to the British 
claim of a right to search vessels on the high seas in time of 
peace, ib.; messages of, asking authority from Congress to 
take proper measures to protect American rights in Mexico 
and Panama, 147-50- 

Buenos Ayres : Question of recognition of, 72 ff. 

Bryan, W. J. (Sec'y of State) : Protest by, against German 
Embassy's "Lusitania Warning," 48-9. 

Calhoun, J. C. (U. S. S.) : Attack by, on President Polk's mes- 
sage asserting the existence of war with Mexico, 136-7. 

Cases: The Appam, 105 f n. ; in re Baiz, 166 f n. ; Bas v. Tingy, 
112; Bertram v. Robertson, 98 f n. ; Botiller v. Dominguez, 104; 
Charlton v. Kelly, 103 fn., 115-6; the Chinese Exclusion Cases, 
I ; in re Cooper, 105 f n, ; in re Debs, 107-8 ; Durand v. Hollins, 
143-4; The Exchange v. McFadden, 105 fn. ; Field v. Clark, 
117; Fong Yue Ting v. U. S., 1-2; Foster v. Neilson, 98 fn., 
164; the Head Money Cases, 105 fn., 109-11; Henfield's Case, 
7 f n. ; Holmes v. Jennison, 2 fn., 102, 121 f n. ; Jones v. U. S., 
166 f n. ; Kansas v. Colorado, 30-2 ; Marbury v. Madison, 39 ; 
in re Neagle, 105-7, 120 fn., 142-3; Neely v. Henkel, 98 fn., 
166 f n. ; Pollard's Lessee v. Kibbe, 98 f n. ; the Prize Cases, 
139-40 ; Terlinden v. Ames, 102-3, 166 f n. ; Tucker v. Alex- 
androff, 118-9; U. S. v. Eaton, 70 fn. ; U. S. v. Goodwin, 7 fn. ; 
U. S. V. Hartwell, 66 in.; U. S. v. Palmer, 165-6; U.^ S. v. 
Pulaski, 113 fn. ; U. S. v. Rauscher, 98 fn., 105 f n. ; Virginia v. 
Tennessee, 121 f n. ; Wheaton v. Peters, 7 f n. ; Whitney v. Rob- 
ertson, 98 f n. ; Williams v the Suffolk Ins. Co., 165. 

Cass, Lewis : Assertion by, as Senator, of the right of the 
President to recognize an existing state of war, 137-8; note 
by, as Secretary of State, to Lord Napier regarding American 
action in China, 146. 

China: The Boxer Movement in, 150-1 ; Protocol of September 
7, 1901, with, ib. 

Clay, Henry (M. C.) : Efforts of, to promote recognition of 
the South American republics 73-4; claim by, that Congress 
has power to recognize new states, 76. 

Cleveland, President: Warned by Congress against employing 
force to restore the monarchy in Hawaii, 45 ; appointment by, 
of J. H. Blount as special commissioner to Hawaii, 64; inter- 
vention by, in the dispute between Great Britain and Ven- 
ezuela, 130. 

"Concurrent Powers": "Pacificus" and "Helvidius" on, 14, 22-3; 
cf. pp. 36-7 and 192 fn. 

Congress : Powers of, affecting foreign relations, 2, 190-5, 206-7 ; 
right of the houses of, to pass resolutions touching diplomatic 
policy, 40-6, 75-6; right of, to withhold appropriations required 
by treaties, 92-7; relation of, to customs agreements, 97-8; 
power of, to supplement treaty provisions generally by "neces- 
sary and proper legislation," 98; powers of, no limit to the 
treat}' making power, 97; power of, to repeal treaties as do- 



INDEX 211 

mestic law, 109-11; power of, to abrogate treaties as inter- 
national contracts, 111-15; power of, to authorize the President 
to enter into certain international agreements without refer- 
ence to the Senate, 117; power of, to modify Presidential 
pohcies, 126-7; relation of war declaring power of, to the 
powers of the President in the diplomatic field, 12, 21-2, 27, 
127-31; formula usually adopted by, in its declarations of 
war, 141; question of delegation of war powers of, to the 
President, 149-50, IS3-4; failure of, to authorize the President 
to protect American vessels against German submarines, 152-3; 
see Acts of Congress. 

Constitution, The: Provisions of, touching the control of for- 
eign relations and principles established for construing same, 
1-6 ; question regarding Art. I, Sec. 6, Par. 2 of, 65-6 fn. ; ques- 
tion regarding Art. I, Sec. 9 of, 93 ff . ; Art. I, Sec. 8, Par. 10, 
construed, 115; Art. I, Sec. 10, construed, 121 f n. ; see "Advice 
and Consent," "Ambassadors and Other Public Ministers," 
"Concurrent Powers," Congress, "Executive Power," the Presi- 
dent, Treaties, etc. 

Consuls, Foreign: President issues exequaturs of, 46-7. 

Courts, The: Power of, in the enforcement of treaties as "law 
of the land" and of private rights thereunder, 103-5, 108; see 
"Political Questions." 

Crandall, Sam'l B. : Volume by, on "Treaties, Their Making 
and Enforcement," cited 89, 94, 125. 

Cuba: The question of the recognition of the insurgent govern- 
ment in, before the Senate, 79-82; American intervention in, 
163 fn. 

Cushing, Caleb (Att'y-Gen'l) : Views of, respecting the powers 
of the President in the appointment of diplomatic agents of 
the U. S., 55-8, 68-70. 

Daniels, J. W. (U. S. S.) : Speech by, apropos President Cleve- 
land's intervention between Great Britain and Venezuela, 130. 

Davis, H. W. (M. C.) : Resolution by, regarding French ag- 
gression in Mexico, 41 ; contention of, that Congress has the 
right to direct the diplomatic policy of the United States, 41-3. 

Delegation of Legislative Power : See Congress. 

Departmental Independence : Operation of the principle in the 
field of foreign relations, 5-6, 36-46. 

Entente, The: Our understanding with, a "gentlemen's agree- 
ment," 125. 

Executive Agreements: Instances of, 117-20, 125, 151 (including 
"Identical Notes," "Gentlemen's Agreements," Protocols, Mo- 
dus Vivendi, etc.) ; whether judicially cognizable, 120 fn. 

"Executive Power" : Meaning of the term as used in the Con- 
stitution, 5, 10 ff., 20-1, 28-9, 30-2, 33-5, 59, 155, 184-5, 203, 205. 

Extradition: An executive function, 99-103; participation of the 
judiciary in, today, 103. r • j ^ 

Foreign Relations Committee, The: Views of, cited, 36-7, 79-80; 
relations of, to the President, 174 



212 INDEX 

Foster, John W. : Volume by, on "The Practice of Diplomacy," 

cited, 65 fn., 89. 
Genet, Citizen (Fr. Envoy) : See Jefferson. 
Ghent Mission, The: See Madison. 
Goodnow, Prof. F. A. : On the conception of "executive power" 

in 1789, 33-4- 

Gore, Christopher (U. S. S.) : Resolutions and speech of, deny- 
ing the constitutional propriety of the Ghent Mission, 50-1. 

Grant, President: Protest by, against effort by Congress to dic- 
tate the diplomatic correspondence of the Government, 44; 
message of, suggesting suspension of certain provisions of the 
Treaty of 1842 with G. B., 114; efforts of, to procure the an- 
nexation of Santo Domingo, 158. 

Great Britain: Convention with, respecting armament on the 
Great Lakes, 117-8; see Buchanan and Treaties. 

Gregory, T. W. (Att'y-Gen'l) : Opinion of, sustaining the Presi- 
dent in taking over the wireless station at Siasconset, 109. 

Greytown: Bombardment of, 143. 

Hamilton, Alexander: Defense by, of the constitutionality of 
Washington's "Proclamation of Neutrality," 8-15, 28; conten- 
tion of, that the House of Representatives is under constitu- 
tional obligation to pass all measures necessary for the execu- 
tion of treaties, 94-7; attack by, on Jefferson's views respect- 
ing the President's war powers, 133-5. 

Harlan, James (U. S. S.) : ^ Speech of, defending President 
Grant's Santo Domingo policy, 160-1. 

Hawaii: See Cleveland. 

Hayes, President: Message of, vetoing bill requiring the Presi- 
dent to abrogate certain treaty articles with China, 114-5. 

"Helvidius": See "Madison." 

Hoar, G. F. (U. S. S.) : "Autobiography" of, cited, 65-6 fn. 

Huerta, Victoriano : Downfall of, due to non-recognition by the 
United States, 83. 

Jackson, President: Appointment by, of a diplomatic mission 
to Turkey without reference to the Senate, 58-63; message of, 
regarding the recognition of Texas, 77-8. 

Japan: "Gentlemen's Agreement" with, respecting immigration, 
120. See Roosevelt. 

Jay, John: Writes Washington's "Proclamation of Neutrality" 
of 1793, 7; views expressed by, in the Federalist regarding the 
President's participation in treaty making, 84-5. 

Jefferson, Thomas : Urges Madison to answer "Pacificus," 16 ; 
conversations of, as Secretary of State, with Genet respecting 
the diplomatic powers of the President, 46-7; message of, as 
President, on hostilities with the Barbary Pirates, 132; asser- 
tion of, that "the transaction of business with foreign nations 
is executive altogether," 203. 

Johnston, J. S. (U. S. S.) : Declares that the President has 
power at all times to commit the peace of the country, 127. 

Koszta, Martin: Episode involving, 142. 

Lansing, Rob't (Sec'y of State) : Announcement by, of the 



INDEX 213 

intention of the United States to place armed guards on 
American vessels, 155-6. 

"Leges posteriores," etc. : Application of the maxim to the case 
of conflicting treaties and acts of Congress, 109. 

Lincoln, President: Question raised by proclamation of, estab- 
lishing a blockade of the Southern ports, 138-9. 

Livingston, Edward : Circular of, as Secretary of State, regard- 
ing the proper form in addressing communications to this 
Government, 48; speech of, as Senator, in defense of the 
Turkish Mission, 61-3. 

Locke, John : View of "executive power," in his "Civil Govern- 
ment," 34-5. 

Louisiana : Annexation of, a Presidential policy, 126. 

McKinley, President : Proposes forcible intervention in Cuba, 
80; dispatch by, of forces to China during the Boxer Revolt, 
150-1. 

McLemore, Jeff. (M. C.) : Resolution by, warning American 
citizens from travelling on armed merchant vessels, 45. 

Maclay, Wm. (U. S. S.) : "Journal" of, quoted, 37-8, 86-7. 

Madison, James: Answer of, to "Pacificus," 16-27, 28; some 
inconsistencies of, 28-9; appointment by, as President, of the 
Ghent Mission in a recess of the Senate, 49 ff. ; agrees that 
the President may refuse the House information, 91. 

Mangum, Willie (M. C.) : Denies that Congress can authorize 
the abrogation of a treaty, 112 fn. 

Marshall, John (M. C.) : Speech by, defending the extradition 
of Jonathan Robbins, 99-103. 

Mexico : French aggressions in, 41 ; executive agreements with, 
respecting the passage of troops, 118-9; rejects the Atlantic 
City protocol, ib.; see Buchanan. 

Monroe Doctrine, The: Due to Presidential initiative, 126. 

Montesquieu: View of, regarding "executive power," in his 
"Spirit of the Laws," 35- 

Moore, J. B. : "Digest" of, quoted, 71-2. 

Morgan, J. T. (U. S. S.) : Views of, respectmg recognition of 

Cuba, 81. . . r 

Nelson, Knute (U. S. S.) : Views of, respectmg recognition of 

Cuba, 82. 
Neutrality: Purpose of a declaration of, 9, 13. 
"Office" : Legal tests of. 66 fn. . , r 

"Open Door" Policy, The: Executive agreements with reference 

to, 119; a Presidential policy, 126. 
Oregon Boundary, The: See Polk. 
"Pacificus": See "Hamilton." 
Panama: See Buchanan and Roosevelt. 
Panama Congress, The : See J. Q. Adams. 
Pierce President: Message of, on the Greytown affair, 143-4- 
"Political Questions": Examples of, and importance of the 

concept, 163-7. . , r. 1- • . .- .- 

Polk, President : Consults the Senate preliminary to negotiating 



214 INDEX 

the Oregon Boundary Treaty, 88-9 ; asks Congress for author- 
ity to terminate joint convention with Great Britain, 112; Mex- 
ican War Message of, 136. 

Pomeroy, Prof. J. N. : Work of, on "Constitutional Law," 
quoted, 130-1. 

President, The: Sole organ of communication with foreign 
Powers, 10, 13, 17, 33, 2>^, 38-9, 44, 46-9, 100, 127, 130-1, 144, 
169 ff. ; power of, to receive and dismiss foreign diplomatic 
agents and consuls, 46-9, 173; power of, in the appointment of 
diplomatic agents of the United States, 49-70, 173 ; power of, 
to recognize new states and governments, 14, 24-5, 71-83, 173; 
power of, to refuse information to the Senate or House, 90-2, 
197-8, 202; power of, in the making of treaties, 84-92, 170-2, 
175-6; power of, in the interpretation and enforcement of 
treaties, 10, 13, 15, 17, 23, 46-7, 98-108; power of, to prevent 
infractions of international obligation, 108-9 ; limited power of, 
to determine that treaties have lapsed, 115-6; power of, to make 
"executive agreements" with other governments, without re- 
ferring same to the Senate, 117-25; initiative of, in determining 
diplomatic policies of the U. S., 126-7 ; how diplomatic powers 
of, are affected by Congress's right to declare war, 127-31 ; 
power of, practically to force war, ih.; power of, to recognize 
an existing state of war, 131-42; power of, without Congress- 
ional authorization, to employ warlike measures in the pro- 
tection of American citizens and their rights abroad, 142-56; 
power of, without Congressional authority, to employ warlike 
measures in support of American "interests" abroad, 156-63; 
how powers of, as Commander in Chief, supplement his diplo- 
matic powers, 109, 116-8, 131, 139-40, 149, 151 fn. ; power of, 
in the determination of "political questions," 163-7; limitations 
on the powers of, 195-6; final state of the powers of, in the 
diplomatic field, 205-7. 

Pretoria : Congratulations from, addressed to Congress, 43-4. 

"Ratification" : Meaning of the term in connection with treaty 
making, 92, 171. 

Recess Appointments : The established construction of the Con- 
stitution respecting, 55. 

Recognition : Residence and scope of the power of, 14, 24-5, 
30 fn., 71-83, 173, 192-5, 199-200. 

Robbins, Jonathan: Case of, see Marshall. 

Roosevelt, President: Intervenes to prevent a treaty violation 
by San Francisco, 108; agreement of, with Santo Domingo 
respecting control of customs in that island, 121-2, 126; "Auto- 
biography" of, quoted, 121-2, 168-9; dispute of, with the Sen- 
ate respecting certain arbitration treaties, 122-3 ; dispatch by, 
of fleet around the world, 151 fn. ; intervention by, between 
Panama and Colombia, 162, 169; sends a representative to the 
Algeciras Conference, 169. 

Root, Elihu : Mission of, to Russia, 71 fn, 
Santo Domingo policy, 159-60. 



INDEX 215 

Schurz, Carl (U. S. S.) : Speech of, attacking President Grant's 
Santo Domingo policy, 159-60. 

Senate, The : Powers of, in connection with the appointment 
of the diplomatic representatives of the United States, 49 ff. ; 
powers of, in connection with the making of treaties, 84 ff., 
170-2, 175, 178-90, 201-3. 

Seward, W. H. (Sec'y of State) : Asserts independence of the 
Executive in control of the foreign relations of the United 
States, 41-2. 

Sewell, W. J. (U. S. S.) : Resolution by, apropos President 
Cleveland's action in the British- Venezuelan controversy, 130. 

Smyth, Alexander (M. C.) : Claims the power of recognition 
for the President, 74. 

Special Agents and Commissioners : Known to the Law of Na- 
tions, 61 ; instances of appointment of, by the President with- 
out recourse to the Senate, 62-4, 71 f n. ; dubious constitutional 
status of, 65. 

Spooner, J. C. (U. S. S.) : Views of, respecting recognition of 
Cuba, 81 ; speech by, asserting the leadership of the President 
in the diplomatic field and the subordinate role of the Senate, 
169-77, 197-204 passim. 

Stone, W. J. (U. S. S.) : Speech of, in opposition to protective 
measures against German submarine attacks on American ves- 
sels, 153-5. 

Sumner, Chas. (U. S. S.) : Resolutions of, attacking President 
Grant's Santo Domingo policy, 159. 

Taft, President: Volume of, on "The Presidency," quoted, 112- 
3. 123-5, 151 fn. ; action of, respecting the Russian Treaty, 113; 
dispute of, with the Senate respecting certain arbitration 
treaties, 123-5; forcible action by, in Nicaragua, 151 fn. 

Tazewell, L. W. (U. S. S.) : Denies the constitutional propriety 
of President Jackson's action in sending a mission to Turkey 
without reference to the Senate, 58-61. 

Texas : See Benton, Jackson, and Tyler. 

Tinoco, Federico : Failure of, to secure American recognition 
as President of Costa Rica, 83 fn. 

Todd, Prof. A.: Work by, on "Parliamentary Government" 
cited, 33. , . , 

Treaties: As "law of the land," 3, 98-105; relation of, to acts 
of Congress, 97, 109-11; relation of, to State laws, 103-4; how 
abrogated or terminated upon notice, 11 1-5; Treaties of 1778 
with France (abrogated), 112; Treaty of 1794 with Great 
Britain, 4, 90, 93, 101-4; Treaties of i799 and 1828 with Prussia, 
105 fn. ; Convention of 1827 with Great Britain, 112; Treaty 
of 1832 with Russia (abrogated), 113; Treaty of 1842 with 
Great Britain, 103, 114; Treaty of 1868 with China, 114; Treaty 
of 1871 with Italy, 115-6; Treaty of 1871 with Great Britain, 
120; Treaty of 1894 with Japan, 108; treaties with Cuba, Hayti, 
Nicaragua and Santo Domingo which furnish grounds for 
American intervention, 162-3 and fn. 



2i6 INDEX 

Tucker, H. St. G. (M. C.) : Urges the right and duty of Con- 
gress to keep the President informed of its views respecting 
foreign affairs, 75-6. 

Turkish Mission, The : See Jackson. 

Tyler, President: Texan policy of, attacked in the Senate, 128, 
157; defense by, of his offer to protect Texas from attack, 

156-7. 

Venezuela: See Cleveland. 

Walker, R. J. (U. S. S.) • Attack by, upon the idea that the 
treaty power is nullified by the possibility of war resulting 
from its exercise; 128-9. 

Washington, President: "Proclamation of Neutrality" of, and 
questions raised thereby, 7; appointment by, of David Hum- 
phreys as peace commissioner to Algeciras, without reference 
to the Senate, 62-3; attempt by, to associate the Senate with 
him in the negotiation of treaties, 85-8; refusal by, of in- 
formation to House respecting the Jay Treaty, 90. 

Webster, Daniel (M. C.) : Asserts the right of the President to 
instruct American representatives abroad, without direction by 
Congress, 40-1. 

Willoughby, W. W. : Work by, on "The Constitution," cited, 66 
fn., 123. 

Wilson, President: Letter of, to Mr. Pou, regarding McLemore 
Resolution, 45 fn. ; fondness of, for "special agents," 64-5, 71 
fn. ; policy of, refusing recognition to governments grounded 
on acts of violence, 83 and fn. ; action of, respecting wireless 
station at Siasconset, 108; protocol proposed by, to Mexican 
commissioners, 118; message of, advising a declaration of war 
with Germany, 141 ; demand by, of authority from Congress 
to supply arms to American vessels, 152; Caribbean policy of, 
162-3; action of, along the Mexican border, 163. 



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